
    *William Cutler v. John Hinton.
    June, 1828.
    Statute of Frauds — Collateral Promise — What Constitutes — Case at Bar. — If c. authorise H. to say to a merchant, “that he G. would pay for any goods sold to his son-in-law D.,” or to any merchant of whom L. “might purchase,” or “might wish to purchase goods, that lie would pay Tor D.” a certain sum; this is a collateral promise, aud being verbal, is void under the Statute oí Frauds.
    Same — Same—Same—Evidence.--In such case, if the merchant charge the goods to L., the person to whom they are delivered, such entry in his boolts is. (like the admissions of a party,) strong evidence against him. that he is dealingwtth Lj.. and not with O., but vice versa, if the entry be against 0., the promiser, such entry is not evidence for the merchant, so as to make that an original, which would have been otherwise a collateral, promise.
    Same — How to Be Executed.- The Statute of Frauds, is a wise and salutary Law, and should be fairly and fully carried into execution by the Courts.
    This was an appeal from a Decree of the Chancery Court held in Richmond, rendered in favour of the Appellee, against the Appellant.
    William Cutler had brought Assumpsit against John Hinton, for money had and received to the Plaintiff’s use, in the Superior Court of Prince George. He obtained a Verdict and Judgment against the Defendant, for $2,785 60 cents, with interest from the 21st April, 1818. At that trial the Defendant offered in evidence, as a set-off, or discount against the Plaintiff’s demand, an account raised against Cutler, by John Hanserd & Co., for the sum of S795 10, of which a small part was for goods furnished Cutler himself, in March, 1816, bu( the chief part to Theoderick Rove, in December, 1816, and January, 1817, and the testimony of Samuel Hinton, who stated that, in December, 1816, the Plaintiff, Cutler, desired him to say to any other merchants that he would pay for any goods sold to Theoderick Rove, if the same did not exceed $4000; that he made this communication to Hanserd & Co., among others: that in consequence of this communication, Hanserd & Co., delivered to said Rove, most of the goods in the account mentioned, and some to the Plaintiff himself: that he has examined the books of Hanserd & Co., and x'that on them the goods are charged to Cutler, and not to Rove: that before the day of the commencement of this suit at Raw, that co-partnership was dissolved, and that all right, title and interest in the stock in trade, as well as in the debts and credits, and books and accounts, were assigned and transferred, for valuable consideration, to the Defendant, John Hinton, and to prove this, a Deed was also given in evidence; but the Court refused to allow the account to go to the Jury as a set-off, because it was a debt due to a partnership, &c. The Verdict and Judgment above mentioned, were the consequence.
    John Hinton then exhibited his Bill to the Chancellor, praying that the above-mentioned sum of $795 10, may be allowed to him as a discount, and that Cutler may be injoined from enforcing so much of his Judgment by Execution: he states, that Cutler obtained the credit with Hanserd & Co., (the firm consisting of Hanserd Hinton) for his son-in-law, Rove, some small part of the account being for himself; that the partnership is dissolved, of which public notice is given, and the partnership effects and debts assigned to himself. He states, moreover, that Cutler had taken a Deed from Rove, for property in Peters-burg, and that the real consideration of the Deed was, the responsibility which Cutler had encountered for Rove’s debts, and amongst others, this very debt.
    Cutler, by his Answer, denied that he ever made himself responsible to the complainant for goods purchased from him by Rove, or that he ever authorised Rove to obtain them on his credit: he denies that Rove ever conveyed to him any property to pay the debt, and asserts that Rove is still considerably indebted to him. He then gives a narrative of Rove’s marriage with his daughter; of his becoming in debt to him ; of his indiscretions and extravagance; of his promises to reform, and of his proposal to retire to the country, and keep a small store. He states, that he made some advances to him, gave his credit at one or two stores, to obtain such goods as were immediately necessary, *for which he, the Defendant, paid; that the Defendant promised Rove that if he would reform, he would make him a semi-annual allowance for several years ; that at Rove’s request, he repeated this promise in the presence of Samuel Hinton, that there might be a witness to the promise, and perhaps that it might improve Rove’s credit; that the promise would have been performed, if Love had complied with the condition, but he became more intemperate than ever, and the Defendant then withheld from him any further advances, that he might preserve for his wife and children those funds which, if given to him, would be squandered. The Defendant not meaning to cast any imputation on Samuel Hinton, the witness, supposes he may have misunderstood the conversation, and says it is impossible he could have been so stupid as to authorise the witness to proclaim to the merchants of Petersburg, that he meant to pay some thousands of dollars, to just as many as Rove could get credit wi th for that amount. As the conversation has been misunderstood, and may be incorrectly represented in evidence, the Defendant considers himself compelled, in the just defence and protection of his estate, and of his family, to insist on the benefit of the Statute for the prevention of Frauds and Perjuries. On this Answer, issue was joined.
    The evidence given, is to the following effect.
    Samuel Hinton, in an affidavit, says, that in December, 1816, Cutler requested him to inform Hanserd & Co. or any other person, of whom Love might purchase goods, that he would pay for Love four thousand dollars: that he gave Hanserd & Co. this information: that goods were furnished Love, and charged to Cutler: that a part of Hanserd & Co.’s account was for goods got by Cutler: and the witness expressed the opinion, that the goods delivered Love were sold from the information the witness gave to Hanserd & Co., and exclusively on the responsibility of Cutler.
    Samuel Hinton afterwards gave a deposition, taken by virtue of a commission.
    *He says, that in December, 1816, Cutler called on him and requested him to tell Hanserd & Co., and any other person of whom Love might wish to purchase goods, that he would pay for said Love, the sum of $4,000: that it was not in his power to advance the money at that time. In answer to interrogatories by the Plaintiff, he says, that he gave this information to Hanserd & Co. a few moments after Cutler made the request, and before the goods were purchased: that, in his opinion, they would not have sold the goods, nor would Love have attempted to make the purchase, but on the faith of Cutler’s promise: that Love was not present, when Cutler requested the witness to give the information : that the goods were charged to Cutler on their books: that $645 35, are charged to Cutler, for goods delivered to Love; and $42 13, for goods delivered Cutler: that Theoderick Love is considered by the witness, as a man of truth, honor, and integrity.
    Samuel Turner deposed, that the mutual friends of Love and Cutler, suggested to the latter, in the fall and winter of 1816, when the habits of the former had undergone a change for the better, the propriety of advancing funds to Love to enable him to commence a small mercantile business: that it was finally agreed between them, that Cutler would give to Love four thousand dollars as a capital to commence with ; to be paid by Cutler at different periods, and in the mean time he authorised and requested the witness, to inform any gentleman from whom Love might wish to purchase goods, of the arrangement: that the witness did make the statement to Colqu-houn & Co., from whom Love bought goods: that, pending this arrangement, Love exhibited a statement of his debts, amounting to $5,000; the witness was a principal creditor, and Cutler only a creditor for two or three hundred: witness had taken a Deed of Trust on Love’s house and lot: and it was agreed between the parties, that as Love was about to move, he should make a Deed for the lot to Cutler: that the witness should be authorised to sell it, pay himself, and *that the balance should be appropriated to the discharge of the before mentioned debts: that witness sold the lot, and after paying himself, there remained two negotiable notes of $1,500 each, which Cutler demanded of him: he refused to deliver them, but knowing that Love was indebted to John Hinton, the witness delivered them to him, in order the better to secure the completion of the contemplated arrangement of Love, say, the payment of his debts: tne witness further said, in answer to interrogatories by the Plaintiff, that his impression was, at the time of the arrangement, that Cutler honestly intended to do his son-in-law a favor, but his conduct since, proves the reverse: that Cutler withholds from Love’s creditors what they are justly entitled to: that Love is a man of strict honor and probity, and that witness’s opinion of Cutler has undergone a change.
    Theodorick Love testified,
    that in the fall of 1816, his father-in-law, Cutler, agreed to give him $4,000, to commence a mercantile business, to be taken in goods, it not being convenient at that time for him to advance the money, and the goods could begot on a credit: to this end, Cutler went with the witness to Samuel Hinton, and Turner, and requested them to go with the witness to any merchant, of whom the witness might wish to purchase goods, and inform them that the witness had the privilege of buying to the above mentioned amount: that in making the purchases, the witness did not exceed the $4,000; and a part of the goods he bought of Hanserd & Co. to the amount of nearly $700: that being about to leave town, he offered his lot for sale publicly, but failed to sell: his object was, from the proceeds, to pay his debts: that he was advised to make a Deed to Dr. Cutler, to prevent a sacrifice, he being a monied man, and that no one. would presume that he would sell it for less than its varue; but, there was a perfect, full, and positive understanding, between Cutler, the witness, and his friends, that he was not to consider himself the owner of the property, but that it *was to be sold, and the proceeds applied to the payment of witness’s debts: that Cutler was a creditor to a small amount, for which he was to be paid, but to the balance he had no earthly right: the witness, however, on further reflection, determined not to deliver the Deed to Culter, and actually handed it to John Hinton, and requested him not to deliver it to Culter, or any one else, till he received the proceeds of the sale, except so much as would pay Turner’s claim, which was nearly two thousand dollars. The residue of this witness’s evidence relates to a subject having no bearing on the case.
    The Chancellor being of opinion that the undertaking of Cutler was not collateral, but direct, and that the whole credit was given to him, perpetuated the Injunction. Prom his Decree, Cutler appealed. The Attorney General, for the Appellant. Leigh, for the Appellee.
    
      
      Statute of Frauds — Collateral Promise — What Constitutes. — In Ware v. Stephenson, 10 Leigh 167, it is said: “Whatever doubts may at onetime have existed respecting the undertakings within the scope of the first section of the statute of frauds, it has long since been definitely settled that when the undertaking is for a consideration to be received by, or articles to be supplied to, a third person, if the transaction be such that the third person is responsible to the person who supplies the articles, or from whom the consideration proceeds, the undertaking is collateral, and if oral is not binding. Matson, etc. v. Wharam, 2 T. R. 80; Cutler v. Hinton, 6 Rand. 509.”
      To the same effect, the principal case is cited in Noyes v. Humphreys, 11 Gratt. 645; Radcliff v. Poundstone, 23 W. Va. 733. In Riffe v. Gerow, 29 W. Va. 468, 2 S. E. Rep. 107, it is said: "In Prime v. Koehler, 77 N. Y. 91, it was held that ‘where the purpose of the promisor to pay the debt of a third person is to secure a benefit to the promisor, by relieving his property from a lien, or securing or confirming his possession, the promise is original, and not collat’-eral, and so is not within the statute of frauds.’ ANDiíiows. J., in delivering the opinion of the court, said: ‘Tile circumstances bring the case directly within the third class of cases enumerated in Leonard v. Vredenburgh, 8 Johns. 28, riz., where the promise io pay the debt of another arises out of some new and original consideration of benefit or harm running between the newly-contracting parties. In this class of cases the subsisting liability of the original debtor is no objection to the recovery: and. where the purpose of the promise is to secure a benefit to the promisor by relieving his property from a lien, or securing and confirming his possession, the promise is original, and not collateral. although a third person may be personally liable for the debt, and the promise may be in form a promise to pay such debt, and although the per-tormance of the promise may result in discharging the debt. ’ See also, Waggoner v. Gray, 2 Hen. & M. 603; Clutler v. Hinton, 6 Rand. 509; Ware v. Stephenson, 10 Leigh 155; Noyes v. Humphreys, 11 Gratt. 633; Radcliff v. Poundstone, 23 W. Va. 734.”
      See further, monographic note on “Frauds, the Statute of" appended to Beale v. Diggs, 6 Gratt. 582.
    
   June 5.

JUDGE CARR.

Cutler sued Hinton in Case for money had and received to bis use. On non-as-sumpsit pleaded, the Defendant offered as a set-off, an account for goods, amounting to $795 10. charged as taken up by Cutler, with the firm of Hanserd & Co., of which firm Hinton was one, and produced a Deed, showing a transfer of all the debts of the firm to Hinton, and also a witness to prove, that the goods were taken up by one Love, (the son-in-law of Cutler,) on his (Cutler’s) promise to pay. The Court rejected the set-off. The Defendant excepted, and a Verdict and Judgment were had against him for $2,786 6C, with interest. The Defendant took no appeal, but filed his Bill for an Injunction, stating the facts of Cutler’s obtaining a credit with the Plaintiff’s house for his son-in-law, and a small part *for himself; that the debts of the firm were transferred to the Plaintiff; that the Plaintiff held a sum of money claimed by Cutler, which he was ready to pay him, retaining the amount which Cutler owed him ; that Cutler sued for the money, and the Law Court refused to allow the set-off, because it was a debt due to a firm, &c., and praying the benefit of the set-off.

The Answer of Cutler denies positively that he owes the account claimed of him; avers that he never undertook to pay the firm for goods taken up by his son-in-law, Love, or gave him a credit with them, and relies on the Statute of Frauds to protect him from any such charge. Several depositions were taken, and on hearing, the Court perpetuated the Injunction for the $795 10, and Cutler appealed.

On the argument, the Counsel for the Appellant rested principally on two points. 1st. That the account, if chargeable to Cutler, might have been set-off at Law, and so, that Equity had no jurisdiction: but 2dly. That it could be set-off, neither at Law nor in Equity, because the promise being collateral and verbal, was void under the Statute of Frauds. We will consider this last point first, as it strikes at the root of the claim. Upon this branch of the Statute, prescribing the mode in which <!the special promise to answer for the debt, default, or miscarriage of another person,” must be made, there is no difference of construction, that I have seen, between Courts of Law and Equity; indeed, it is a class of cases, which can very rarely come into Equity. The question generally is, whether the promise is for the debt of another, or not; in other words, (which, though not used by the Statute, have become technical terms,) whether the promise be collateral, or original. The cases are very numerous on the subject, and some of them contain very nice and subtle distinctions ; but-, the principle, which seems to be settled, is this, (as laid down by Buller, J. in Matson v. Wharam, 2 *Term Rep. 80, and by Judge Roane, in Waggoner v. Gray’s Administrators, 2 Hen. & Munf. 603,) “That if the person, for whose use the goods are furnished, be liable at all, any other promise by a third person to pay that debt, must be in writing, otherwise it is void by the Statute of Frauds.” Thus, in Anderson v. Hayman, 1 Hen. Black. 120. The Plaintiff was a woolen draper in London: B. was his rider, to receive orders: the Defendant meeting with B. desired him to write to the Plaintiff, requesting him to supply the Defendant’s son with whatever goods he might want, on his, the Defendant’s credit; and at the same time said, “Use my son well, charge him as low as possible, and I will be bound for the payment of the money, as far as 8001. or 1,0001.” B. wrote to the Plaintiff, giving him the information. Soon after, the son received goods from the Plaintiff, to the amount of 8001. which were delivered to him, in consequence of the father’s order. The son was debited in the Plaintiff’s books: he after-wards became a bankrupt, and this action was brought against the father. The Court were clearly of opinion, that this promise, not being in writing was void by the Slat» ute of Frauds, as it appeared that credit was given to the son, as well as to the father. In Buckmyr v. Darnall, 2 Lord Raymond, 1,085, the Plaintiff declared that the Defendant, in consideration that the Plaintiff, at his request, would let to-hire, and deliver to one J. E. a gelding to ride to Reading, that the said J. E. would deliver the gelding to the Plaintiff. Held, that this was a collateral promise, because Detinue would lie against J. E. on the bailment. These cases, out of a vast multitude, serve to exemplify the general principle, that where the promisee as a double remedy, both against the promiser, and him in whose behalf the promise is made,, such promise is collateral and must be in writing.

Let us now see what was Cutler’s promise. Samuel Hinton has given evidence three times. In his evidence before the Law Court, he says that Cutler desired him to *say to any other merchants that he would pay for any goods sold to Love, if the same did not exceed $4,000. In his affidavit, he says, “In December, 1816, Doctor Cutler requested me to inform John Hanserd & Co., or any other person or persons, of whom Love, his son-in-law, might purchase goods, that he would pay for Love, $4,000. ” In his deposition, he says, that in December, 1816, Cutler called on him, and requested him to tell Hanserd & Co., or any other person of whom Love might wish to purchase goods, that he would pay for said Love $4,000. Now, take either of these forms, and it seems to me, that this is a collateral undertaking: he promises to pay for Love, to any person that Love might purchase, or wish to purchase goods of. Love, then, was to purchase the goods, which of course would render him liable for them, and Cutler was to pay the money for Love, not for himself. Unless I have confounded things strangely, this is clearly collateral. The next witness is Turner. He says that Cutler agreed to give Love $4,000, asa capital to commence with; which sum was to be paid by Cutler, at different pe-iods; and in the mean time, he authorised and requested the deponent to inform any gentleman, of whom Love might wish to purchase goods, “of the arrangement.” Of what arrangement? Why, that he had agreed to give Love $4,000. This might induce the merchants to trust Love, but surely would be no promise, either original or collateral, made by Cutler to the merchants, to pay them money. Love is the only other witness. I question very much whether he is admissible. He seems to stand nearly in the situation of Slaughter, in the case of Waggoner v. Gray’s Adm’rs, (before cited,) who was pronounced by this Court to be inadmissible. I have not thought it worth while, however, to consider this point. Admitting his testimony, and that he puts the promise of Cutler in such a form as to make it an original one, yet the positive Answer of Cutler, directly responsive to the Bill, overweighs it, even if it were entitled to full credit. *1 consider, then, that the promise, as proved here, is collateral, and not being in writing, could raise no claim against Cutler. It may not be amiss to remark, that I have not overlooked the fact that the goods were charged by Hanserd & Co. to Cutler, and not Love, and that this is noticed in the cases as a fact tending to show to whom the credit was originally given: it seems tome, that such entries made in the books of merchants, are better evidence against than for them. Where they charge the goods to the person to whom they are furnished, it is strong to show that they considered themselves dealing with him, and (like the admissions of a party,) may be safely taken against thembut it would be of dangerous tendency to say, that by an entry made by themselves, in their own books, they could change'the complexion of their case, and made that an original, which would otherwise have been a collateral, promise. This would be departing wholly from the general policy of the Law, and the particular policy of the Statute of Frauds, which is, in my opinion, a wise and salutary Law, and should be fairly and fully carried into execution by the Courts.

With respect to the question of set-off, it need hardly be considered; for, as to that part of the account claimed as furnished to Love, on the promise of Cutler, it was (if I am right,) no debt at all; and as to the part charged as furnished to Cutler himself, we think it no ground for coming into Equity.

I think that the Decree should be reversed, the Injunction dissolved, and the Bill dismissed.

JUDGE CABELL, and the PRESIDENT, concurred. 
      
       Absent, Judges Green, and Coalter.
     