
    Farley against Cleveland.
    it promise* to pay thirddC,lte°-mna arises out of sMerationV C°of benefit to the promissor, or harm to the SET ’the promissor, eipromisse™ * or tho original debtor, such promise is not statuto *of frauds, (i R. thoiiob the míginai dubt still subsist, and remain entirely htTnew^greemeet.
    Thus where M. owed F. and C. in consideration that M. delivered him bay to the value of the debt, promised by parol to pay F., held, that this was not within the statute.
    The English and American cases establishing, illustrating and explaining this rule, collated and examined, per Savage, Ch. J
    O n error from the Washington C. P. Farley sued Cleveland in the Court below, declaring specially, that one Moon on ^le 22d November, 1815, gave the plaintiff a promissory note for $100, with interest, payable the 1st June there-after j that on the 1st January, 1817, Cleveland, in consideration of 15 tons of hay (value $150) sold and delivered ’ _ _ _ . . s n by Moon to him, .at his instance, promised to pay the note of Moon to Farley.
    On the trial, the plaintiff offered to prove the note; and that, in the spring of 1817, Moon absconded, just before which the defendant promised to pay Moon’s note to the . M ni plaintiff, m consideration of 15 tons of hay, worth $10 per ton> to ke delivered by Moon to him; that the hay was thereupon delivered to the defendant, and in consideration thereof, he promised the plaintiff, hy parol, to pay the note;. ^at next ¿ay Moon absconded. '
    . . The C. I?. nonsuited the plaintiff, on the ground, that the promise being to pay .the debt of another, and not in writing, was void within the statute of frauds; and that was the only question made on the argument here.
    
      D. Russell, for the plaintiff in error,
    said the delivery of the property constituted a new and distinct consideration, and thus took the case out of the statute; and he relied on Schermerhorn v. Vanderheyden, (1 John. Rep. 139, and the cases there cited,) that a promise to one for the benefit of another, will maintain a suit in the name of the one for whose benefit it is made. He said in Leonard v. Vredenburgh, (8 John. 29,) the cases were considered and classified by Kent, Oh. J. and his third class of cases, which he says is not within the statute, embraces the present one. It is, “ when a promise to pay the debt of another, arises out of some new and original consideration of benefit or harm, moving between the newly contracting parties.” (Id. 39.) The arrangement operated as an extinguishment of Moon’s debt; and the note was retained merely as evidence of the consideration of the defendant’s promise; and to show the extent of the plaintiff’s claim. He also cited Skelton v. Brewster, (id. 376.) Myers & Bellinger v. Morse, (15 John. 425,) Chaplin v. Rogers, (1 East, 192,) Hinde v. Whitehouse, (7 id. 558,) Elmore v. Stone, (1 Taunt. 457,) Rob. on Frauds, 232, and Stadt v. Lill, (9 East, 348.)
    
      J. Willard, contra,
    said the rule is, that wherever the liability of the original debtor is not destroyed by the premise of the third person, the promise is collateral and within the statute; (Simpson v. Patten, 4 John. Rep. 422; Jackson v. Rayner, 12 id. 291; Leonard v. Vredenburgh, 8 id. 29; Fish v. Hutchinson, 2 Wils. 94;) and he also cited 1 H. Bl. 120; 2 Ld. Raym. 1085; 2 T. R. 80.
    He said Farley’s remedy against Moon continues unimpaired. In all the cases cited on the other side, the liability of the original debtor was discharged; and that discharge constituted the whole or a part of the consideration of the promise. In such case the promise is original. There is nothing left to which it can be collateral. (3 Burr. 1886. 7 John. Rep. 463. 8 id. 376.)
    
      There is, if the promise be in truth an original one, a va rj[ance from the declaration, which sets it forth as collateral
    
    
      Russell, in reply, said there was no substantial variance; but if otherwise, the objection could not be listened to here, because omited in the Court below.
   Curia, per

Savage, Ch. J.

That part of the statute which relates to this case, is as follows : “No action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriages of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing,” &c. Our statute is a transcript of the 29 Ch. 2. The English decisions, therefore, upon that statute, are entitled to consideration. We have been referred to several, before noticing which, the three classes of cases mentioned by Kent, Ch. J. in Leonard v. Vredenburgh, (8 John. Rep. 29,) should be attended to. These are, 1. Where the promise of the defendant is collateral to the principal promise, but made at the same time; 2, Where the collateral promise was subsequent to the original indebtedness, and was made upon no other consideration but the liability of the original debtor; 3. Where the promise arises out of some new consideration of benefit or harm, moving between the newly contracting parties, or, as expressed by Mr. Roberts, (Rob. on Frauds, 232,) “ If it spring out of any new transaction, or move to the party promising upon some fresh and substantive ground of a personal concern to himself.” The first class needs no other consideration than the original debt to which it is collateral; the second does ; and the third is not within the statute at all. In the two first cases the considerativa must be in writing, as well as the promise; in the third, all may rest in parol, as in ordinary cases.

Buckmyr v. Darnall, (2 Ld. Raym. 1085,) belongs to the first class. The defendant had promised the plaintiff to return his horse, if he would let him to one English, to ride to Reading. This was held to be collateral, because English was liable on the original bailment; and hence it must be in writing. So also in Jones v. Cooper, (Cowp. 227,) the promise was to pay the plaintiff, if the debtor did not, which was clearly within the statute. In Matson v. Wharam, (2 T. R. 80,) the defendant applied to the plaintiff to sell goods to one Coulthard, and said, “ I will see you paid.” This was held to be void, being merely by parol. In Anderson v. Hayman, (1 H. Bl. 120,) the defendant 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 £800, or £1000.” The goods were charged to the son. The promise was held to be collateral and void, being by parol.

In this Court, the case of Leonard v. Vredenburgh, as decided, belongs to the third class. The defendant promised in writing to guaranty a note of one M. Johnson, for $500, on which the guaranty was written.

The case of Fish v. Hutchinson, (2 Wils. 94,) belongs to the second class. The plaintiff had sued one Vickars, and the defendant in consideration that the plaintiff would stay his action, promised to pay him the money owing to him by Vickars. The Court decided this promise to be within the statute, as the original debt was still subsisting. So also in the case of Jackson v. Rayner, in this Court, (12 John. 291,) the defendant in the Court below, promised the plaintiff below, (who had sued the defendant’s son,) that he, the defendant, would pay the debt, as he had taken his son’s property, and meant to pay his honest debts. The Court decided, that a promise in writing was necessary; and emphasize the fact, that the oríginal debt of the son was still subsisting. This case was decided on the authority of Simpson v. Patten, (4 John. Rep. 222,) which will be hereafter noticed.

The third class, mentioned by Kent, Ch. J. as not within the statute, has been illustrated by the following cases: In Read v. Nash, (1 Wils. 305,) one Tuack, the plaintiff’s testator, had sued one Johnson for an assault and battery, and the cause being at issue, the defendant promised, that, if Tuack would withdraw the record, he would pay him £50 and the costs. This was held an original promise, and that here was no debt, default or miscarriage. In Williams v. Leper, (3 Burr. 1886,) the plaintiff was proceeding to distrain the goods of one Taylor, his tenant, for 3 quarter's rent, being £45, when the defendant, who was agent for Baylor’s creditors, td sell the goods under an assignment of them, promised the plaintiff to pay the rent in arrear, if he would desist from distraining. It was contended that this promise should have been in writing, and that Baylor still remained Hablé till actual satisfaction. Ld. Mansfield said the landlord had a legal pledge : he had a lien upon the goods ; and that the statute did not apply. Bhe casé of Simpson v. Patten, (4 John. Rep. 222,) Carné here on certiorari. Patten had sued Simpson in the Court below on a promise, that if he, Patten, would forbear to sue one J. S., Simpson would pay' the aniount of J; S.’s note, as soon as he could sell án acre of land of J. S. which he, Simpson, was authorized to sell. Simpson had sold the land, and a recovery was had on the parol promise. Bhis Court reversed the judgment, saying that a promise to pay the debt' of a third person must be in writing, notwithstanding it is' made on sufficient' consideration. Bliey said nothin g about this promise being an original undertaking. In support' óf their opinion they cite some of the above' Cases, and' King v. Wilson, (2 Str. 873,) where Raymond, Ch. J. held that a pár'ol promise to pay the debt of another, in consideration' of forbearance, was void by the statute of frauds and perjuries. In the cases of Simpson V. Patten, and Jackson v. Rayner, there was a good consideration, that of indefinite forbearance, and in both cases funds of the original debtor were placed in the hands of the defendants, by which they had the means of performing their promises; but the Original debt was still subsisting. Bhe case of Slingerland v. Morse, (7 John. Rep. 463,) was Very much like the case of Williams v. Leper. Bhe plaintiff had dis-trained the goods of his tenant, and the defendants pro* ihised in writing to deliver them six days after demand, or pay $450. It was contended that the writing should have contained a consideration according to Sears v. Brink, (3 John. Rep. 210,) considering the case as within Ch. J. Kent’s second class ; but the undertaking was held to be original. Bhe plaintiff had a liert which he relinquished; and as this took the case Out Of the statute, no writing'Was' necessary. Skeltott, v. Brewster, (8 John. 376,) came here on certiorari. Brewster had levied on the property of one W. S. by virtue of an execution. W. S. delivered all his goods to Skelton, who, in consideration of this, and that the plaintiff would discharge W. S. from the execution, promised to pay $25. In this case, the Court said “ the promise of the defendant below to pay the judgment against a third person, was founded on a new and distinct consideration, which was the delivery of the goods of such person, and the plaintiff’s discharge of the judgment and they held it an original promise. This case differs from Simpson v. Patten and Jackson v. Ray tier in no essential particular, except that, in those cases, the original debtor remained liable. In this case he was discharged. In those cases, the promises ivere held to be within the statute ; in this, not. It would seem, therefore, that the liability of the original debtor was a contolling fact. But in Gold & Sill v. Philips, (10 John. 412,) the liability of the original debtor was overlooked, or not deemed important. In that case the plaintiffs had a demand against one Aaron Wood. Wood sold his farm to the defendants, and they agreed to pay Wood a certain sum. The rest of the consideration was composed of Wood’s debts, which the defendants agreed to pay ; and among them was the demand of the plaintiffs. The defendants wrote to the plaintiffs as follows: “ Gentlemen, an arrangement has been made between us and Aaron Wood, by which we are to be accountable to you for the balance due from him to you, on account.” The Court say, “ the promise of the defendants was not within the statute of frauds. It had no immediate connection with the original contract, but was founded on a new and distinct consideration. The distinction noticed in Leonard v. Vredenburgh, applies to this case, and takes it out pf the statute. The defendants made the promise in consideration of a sale of lands made to them by Wood; and they assumed to pay the debt of the plaintiffs, as being, by arrangement with Wood, part payment of the purchase money. Here was a valid assumption of the debt of Aaron Wood.” In this case the original debtor was not discharged, and the property purchased of Wood had passed to another person who had made a similar promise. • In the case of Myers v. Morse, (15 John. 425,) the plaintiffs were liable as endorsers of one H. M. They also held a note drawn by H. M. and endorsed by the defendant on which he was liable. It was agreed by the plaintiffs that they would not hold the defendant liable on the note held by them ; in consideration whereof, he promised to indemnify the plaintiffs against one-third of any loss which they might sustain as endorsers of H. M. This was held to he an original promise, founded upon the new consideration moving be'tween the newly contracting parties. The case of Olmsted v. Greenly, (18 John. 12,) was this: The plaintiff was liable as endorser for B. & H. for $1000. B. owed the plaintiff $150, and it was agreed between the plaintiff, defendant and B., that B. should place in the defendant’s hands, in cash, $600, and in goods $1500 ; and that the defendant should pay the. note endorsed by the plaintiff, and indemnify him against all damages and costs by reason of that endorsement; and should also pay the plaintiff the debt due him from B. The plaintiff averred that B. had the money and goods, and that the plaintiff caused them to be put in the defendant’s hands for the purposes mentioned. The Court said, this is not a case within the statute of frauds. It is not a mere collateral undertaking, on the part of the defendant, to pay the debt of Bristol; but was an original contract on an independent consideration, received by the defendant by the procurement of the plaintiff'. The plaintiff has the same ground of action, as if he had delivered his own goods to the defendant as the consideration of the promise.

These cases do not entirely agree, unless they are distinguishable by the circumstance that in some of them forbearance to sue the original debtor is the whole, or a principal part of the consideration for the promise ; and in the others, the whole consideration is something new, moving to the party making- the promise. Thus, in Simpson v. Patten and Jackson v. Rayner, the promise was founded, as well upon the forbearance of the plaintiffs to sue the original debt- or, as upon property of the debtor being placed in the hands of the defendants, out of which the debts might be paid; but in the cases of Gold v. Philips, Myers v. Morse, and Olmsted v. Greenly, no allusion is had to the effect to be produced upon the original debtor. The promise in those cases was predicated upon value received by the defendants, either from the plaintiffs or the original debtor.

The case under consideration is, in principle, very much like the case of Gold v. Philips. The defendant had, in that case, purchased land of the original debtor, which was the consideration moving to the defendant-. In this the defendant purchased hay, which was the consideration moving to him. So, too, in Olmsted v. Greenly, the original debtor placed money and goods in the defendant’s hands, with which he promised to make certain payments, and to pay the plaintiff’s debt. It was averred that this was done by the procurement of the plaintiff, which is the only difference between that case and this, if the hay was not absolutely sold by Moon to the defendant. In all these cases, founded upon anew and original consideration of benefit to the defendant, or harm to the plaintiff, moving to the party making the promise, either from the plaintiff or the original debtor, the subsisting liability of the original debtor is no objection to the, recovery.

I am, therefore, of opinion that the Court below erred; that the judgment be reversed^ and a venire de novo awarded.

Judgment reversed.  