
    Turner v. Hubbell.
    In the Court below,
    Thomas Tumkr, Plaintiff; Richard IIubbiu-l, Drffn-dant.
    A. received goods on freight, and promised to transport them to their-place of destination, and deliver them to the consignee, but sold and converted them to his ;™n use* 1 he owner being about to institute a suit agamst him for da-promised" ' ⅛⅛, the owner, by parol, that if sue A. and against C. t^reef-ver, he B. worn! pay the damages. The owner accordingly did forbear to sue A. and instituted a suit against C. and failed to recover—Held, that this promise of B. was within the statute of frauds and perjuries.
    THIS was an action of asmmftsit.
    
    The declaration stated, that Richard Hubbdl, jun. a son of the defendant, received on boat'd of a sloop, of which he was the commander, at Newbern, in North-Carolina, sundry articles of merchandize belonging to the plaintiff, to be transported to New-York, on freight ; that said Hubbdl, in consideration of a reasonable sum paid to him for the freight, promised to transport said articles to New-York, and there deliver tits same to the plaintiff’s consignee ; that he neg-lectetl to perform his promise, and sold and converted said , , articles to his own use, whereby the same were wholly lost to the plaintiff'. The plaintiff afterwards applied to said 1 Hubbdl, and demanded satisfaction for the injury, and proposed to institute a suit against him ; whereupon the defendant requested the plaintiff to forbear to sue his son, and to institute his suit against one John Selby, who, the defendant ° * declared, was equally concerned in said fraudulent conduct, and was, in truth, the real owner ot the sloop, and received the avails of the property. The declaration then proceeded as follows : “ And the more effectually to prevent the plain- >< tiff from prosecuting the said Richard Hubbdl, - jun. dte.. « said injury, and to induce him to attempt to recover his « damages of him the said Selby, the defendant then and 
      “ there, in consideration, that the plaintiff would forbear to “ arrest, sue, or prosecute his said son for said damages, but “ would sue and prosecute to final judgment a suit therefore “ againt the said Selby, assumed and to the plaintiff faith- “ lully promised, tba the would pay the amount of such da- “ mages, if the defendant should fail to recover judgment “ against said Selby therefore ; or, in case he should recover is such judgment, and should be unable to collect the amount “ thereof of said Selby, that he the defendant would pay the “ whole, or such part thereof as said Selby should be unable “ to pay : and the plaintiff then and there, in consideration “ of the aforesaid promise of the defendant, assumed and “ promised to the defendant, that he would forbear to sue, “ arrest, or prosecute said Richard Hubbell, jun. for said da- “ mages, but would sue and prosecute to final judgment a “ suit against said Selby therefore.” It was then averred, that the plaintiff did forbear to sue Hubball, and instituted a suit against Selby, and produced all the proof which he could obtain to induce a recovery against him, but failed, of all which the defendant had notice.
    The general issue was pleaded ; and on the trial, the plaintiff, after the other facts in the case were conceded, offered to prove, by parol testimony, the promise of the defendant, as alleged in the declaration ; to the admission of which the,defendant objected, on the ground that said promise, not being reduced to writing, was within the statute of frauds and perjuries. The court were of opinion, that the testimony offered was inadmissible, and accordingly ruled it out. A verdict being found, and judgment rendered for the defendant, the plaintiff filed his bill of exceptions.
    
      Daggett, and Fairchild, for the plaintiff,
    contended, that this promise was not within the statute, on two grounds :
    1. Because the statute regards defaults or miscarriages arising out of contracts only, but not promises for wrongs done.
    
      2, Because this was an original undertaking, by the defendant, upon anew and sufficient consideration. In illustration of this point, the eases, of Read v. Mist, 
      
       Williams v. Letter, 
      
       Castling v,Jlubert, 
       and Houlditch £3* at. v. Milne, 
      
       were cited, and commented upon.
    
      Ing er soil, and R. M. Sherman, for the defendant in error.
    The only question arising on the record is, whether the promise stated in the declaration is such an undertaking for another, as is required by the statute of frauds and perjuries to be in writing ? The words of the statute are, “ any special “ promise to answer for the debt, default, or miscarriages of “ another person.” From the several cases which have occurred under this branch of the statute, the following definition of the promise it intends is deducible : “ An undertake <! ing by a person, not before liable—for the purpose of securing or performing—the same duty—for which the party for “ whom the undertaking is made, is, at the same time, liable.
    The following promises, not being within this definition, are exempt rom the operation of the statute :
    1. By a person before liable. As if one of two or more, joint debtors promises to pay the whole debt, he will be liable severally on this promise. It is not undertaking for the debt of another only, but for the debt of himself and another. Nor is there, in such case, any of the temptations to fraud contemplated in those to which the statute extends ; since the creditor will be as safe with a joint, as with a several liability of the promissor.
    Such seems to be the doctrine in the case of Steflhens v. 
      Squire, 
       in which a note in writing was held unnecessary, “ it not being a promise solely for the debt of another.” But in the case of Winckivorth v. Mills, 
       at JYisi Prius, Lord Kenyon held, that a promise by the indorser of an unpaid note, to indemnify the bolder* if he would proceed to enforce payment against the other parties to the note, ought, by the statute, to be in writing. The counsel were dissatisfied with his ruling ; and its correctness is very questionable. The reasoning of Lord Ellenborough. in the case of Castling v. Aubert 
      
       is strongly corroborative of the doctrine in Stephens v. Squire.
    
    2. A promise not for the purpose of securing or performing the original duty, although such security or performance may be the consequence. Thus, in the case of Tomlinson v. Gill, 
       the defendant promised the widow and adminis-tratrix of the intestate, in consideration that he might administer with her, to make up the deficiency of assets for payment of debts. On a bill filed by Tomlinson and others, creditors, for a discovery and payment, it was holden by Lord Chancellor Hardwick.e, that the case was not within the Statute, it is obvious, that although these were subsisting debts, to which the administratrix would be liable, at the same time, that Gill was liable on his promise ; yet the payment (or security) of those debts was not the object of the promise. Had Gill paid the administratrix a sum equal to the deficiency of assets, and the Whole estate been after-wards wasted by her, he would not have been liable on his promise to the creditors ; although, in that event, they would have lost their debts. So far from being a promise to answer for their debts, the final loss of them would be consistent with a punctual fulfilment of the undertaking. In CusHing v. Aubert, and in Amtey v. Marden, 
       theprin-cipie under this head is applied; although the latter case did not seem to solicit its application.
    3. A promise not for the performance of the same duty. In Read v. Mash, 
       the defendant promised Tuack, the defendant’s testator SO/, if he would withdraw his record in an action against one Johnson for assault and battery. This promise was holdcn not within the statute, because Johnson never was liable to pay that particular debt of 501. nor did it then appear, before trial, that he would be liable for any thing. Had the promise been to pay the damages, which the plaintiff had sustained, by the assault of Johnson, it would have been for the same duty, and within the statute. In England, a withdrawment of the record is a bar to another action. It mi,git hence seem as if the 50/. was paid as damages. But had the consideration of the promise been a nonsuit, instead of a retraxit, it would be equally good ; and the original demand on Johnson might have been enforced, even after payment of the 50i. In this light, it appears evident, that the 50/. was not the same duty for which Johnson was liable ; had it been, the pavment itself would have been a satislaction, and a bar. The same doctrine is recognized, and illustrated, in the case of Buckmyr v. Darnall 
      ,
    4. A promise is not within the statute, if there is not a cotemporary liability of the promissor, -and of the party for whose benefit it is made.  Thus, if no credit is given to the party for’tvhose benefit the promise is made, but the whole is originally given to the party promissing ; as if A. say to B. “ furnish J. S. with goods, and I will pay for them, the promise is not within the statute. The law is the same, where the party originally chargeable, by circumstances, which, in their time, or thejr nature, are previous to the promise, becomes exonerated, so that he is not liable eo instanti. The new promise would then be only for what ivas once the debt of another. This is the only point, under the statute of frauds, decided in the case of Williams v. Leper, 
      
       This case, being much relied on by the plantiff’s counsel, merits particular examination. It is claimed to have been deckled on the ground, that parting with the lien was a new consideration ; and it is hence inferred, that even where the original liability continues, a new promise will not be within the statute, if made on a new and distinct consideration ; an inference, unwarranted by that case, and unsupported by any other.
    In that case, Williams, a landlord, entered the premises, for the purpose of distraining for rent due from his tenant, Taylor, an insolvent person, and had the goods in his custody. He parted with them to Leper, who was agent for Taylor's creditors, to sell for their benefit, on his promising Williams to pay the rent for which they were liable as a pledge. The court considered this as substantially an actual distress. By a rule of law clearly recognized, but too familiar for the court to repeat “ in so many words,” Taylor, by this dis-distress, was forever discharged of all personal liability for the rent, the plaintiff having elected a remedy which would bar an action. Consequently, when Leper promised, Taylor was not liable at all. An attention to the reasons given by the court, will clearly shew, that this was the principle of their decision. Lord Mansfield says, “ the case has no- “ thing to do with the statute of frauds.” The res gesta <l would entitle the plaintiff to his action against the defen-
      u riant. The landlord had a legal pledge. He enters to dis-train. He has the pledge in his custody.”—'“ The goods “ are the fund. The question is not between Taylor and the “ Plaintiff.” Justice Wilmot says, “ the tenant was here “ the original debtor. The plaintiff had two remedies “ against him.”—“ I consider this distress as being actually “ made.”—“.Leper became the bailiff of the landlord ; and “ when he had sold the goods, the. money was the landlord’s “ in his own bailiff’s hands ; therefore, an action would have “ lain against Leper for money had and received to the plain- “ tiff’s use.” On this Justice Yates is not as explicit ; but Justice Aston says, “ if this was a promise to pay the debt “ of Taylor, I should think it within the statute, upon Sir “ Fletcher Horton’s distinctions, which are the true ones. « But I look upon the goods here to be the debtor’s” Sir Fletcher Horton’s proposition was “ if the original debtor “ is discharged, then it is an original promise.” It is on the whole clear, that the decision in that case turned wholly on the point, that Taylor was not liable at all, when Leper made the promise.
    In the case of Houlditch & air. Milne, 
       at Hki Prius, Lord Ch. J. Eldon seems to consider the case of Williams v. Leper, to which he manifestly refers, as warranting the proposition, that whenever one is. induced by the promise, to part with goods,, on which he. has a lien, the statute will not apply, even if the original debt is not discharged ; the very conclusion against which the court, in Williams v. Leper, seem most solicitous to guard. Indeed, a cotemporary liability in the original and collateral undertakers, is no where admitted without a written promise on the part of the latter, except in that opinion of Lord Eldon. The opinion ascribed to his Lordship was not necessary in the case ; for the undertaking, on the part of the defendant, was original, and not as surety ; and the credit given the other party seems to have been given by mistake. As that opinion is grounded wholly on a reference to Williams v. Lefier, which, as it Is not named, was probably not before bis Lordship, and to which that opinion is categorically opposed, it is presumed, it will have but little efficacy in introducing a course of anomalous decisions.
    The promise in this declaration has no one quality to exempt it from the operation of the statute. It is an undertaking by Richard Hubbell, the defendant, a person not before liable—*10 fiat/ the same damages, eo nomine, to which Richard Hubbell, jun. was, and continues, liable.
    It is, however, claimed, that the statute does not embrace a promise to answer for the tort of another. No such opinion, however, is to be found in any book ; and the plain words of the statute furnish the best reason why the question was never made before. But this declaration charges that Richard Hubbell, jnn. undertook to carry the goods and deliver them to the consignee of the plaintiff in New-York ; a violation of this agreement is the ground of the liability, for which the defendant is claimed to be responsible.
    It is further contended, that the new) consideration, namely, the forbearance of Richard Hubbell, jun. and prosecution of Selby, renders this an original undertaking by the defendant. No case will warrant the principle of this position. In ¿‘erne limón y. Gill, before mentioned. Lord Hahdwicke, indeed, observes, “ The modern determinations have made a dis- “ tínction hetwéen a promise to pay the original debí, and « on the foot of the original contract, and where it is on « a new consideration.” But it is noticeable, that “ where it « is on a new consideration,” is, by his Lordship, put in contra-distinction to a promise tofiay the original debt, and on the foot oj the original contract. He could mean no more than, that the promise was not for the original debt, bin for a new and distinct purpose, as before explained In Roth-crby v. Curry, 
      
      Fitch v. Hutchinson, 
      
       Chater v. Beck-
      efi,  and many other cases, there was a new consideration ; but they were all holden to be within the statute. In Anstey y. Marden, 
       the defendant was considered as purchasing the debts of an insolvent at 10s. on the pound ; and in Castling v. Aubert, as purchasing the defendant’s right in certain policies ; in each of which cases, the undertaking was not for the same debt. A new consideration, when spoken of by the court, or commentators, is synonymous with “ a new object, or interest” in the party undertaking ; and imports what is observed by Lord Hard-wicke, in Tomlinson v. Gill, that the promise is not to “ pay the original debt on the foot of the original contract.” That part of the promise, which respects a reimbursement of the plaintiff’s expenses in prosecuting Selby, had it constituted the whole agreement, would not have been within the statute. The evidence was not admissible to enable the plantiff to recover for that only ; as a contract is in its nature entire, and no part can be proved, if any be within the statute. This point was directly decided in Chatcr v. Beckett, and constituted the principal question in that case. The same principle furnishes a conclusive answer to the claim of the plaintiff, that the statute does not embrace promises to answer for the tort of another ; admitting, that the promise being to pay such part of the judgment against Selby as he, was unable to pay, was, quoad hoc, an undertaking to answer for the judgment debt of another.
    
      
       1 Wils. 305.
    
    
      
       3 Burr. 1886.
    
    
      
       2 East 325.
    
    
      
      
         3, Esp. Rep. 86.
    
    
      
      
        5 Mod. 213. Esp. Dig. 100.
    
    
      
       2 Esp Rep. 484.
    
    
      
      
         2 East 325.
    
    
      
      A) Amb. 330.
    
    
      
      
         1 Rep. 130.
    
    
      
      
         1 Wils. 305.
    
    
      
       2 Ld. Raym. 1035, S. C. 6 Mod. 184.1 Salk. 27. 3 Salk 15. Holt. 606 but not so well reported.
    
    
      
       2 Term. Rep. 80, Matson v. Wharam. Cowp. 227, Jones v. Cooper. 1 H. Bla. 120, Anderson v. Hayman. 1 Bos, and Pul. 158, Keate v. Temple. 3 Lev. 363, Masters v. Marriott. 1 Burr. 373, Hrris v. Huntbach. 1 Ld. Raym. 224, Watkins v. Perkins, 2 Ld. Raym, 1085, Buckmyr v. Darnall.
      
    
    
      
       3 Burr. 1886. S. C. 2 Wils. 308.
    
    
      
      
         3’ Esp, Rep. 86.
    
    
      
      
         Cited 3 Burr. 1887.
    
    
      
       2 Wils. 94.
    
    
      
      
        7 Term. Rep. 201.
    
    
      
       1 New Rep. 130.
    
   By the Court,

unanimously,

The judgment was affirmed.  