ing the accommodation, that he will indemnify the acceptor or indorser against the defendant, and such costs as may necessarily and reasonably be charged (n). But in ordinary cases, the indorser of a bill, who has had an action brought against him by the indorsee, is not entitled to recover the costs which he incurred in such action, from the acceptor (o). Where a party is either expressly or impliedly indemnified against the demand of a third person, he cannot unnecessarily, and without express authority, defend an action by the latter, and then claim the costs of the action from the person guaranteeing; in other words, he cannot claim reimbursement, if the demand were so clear that a defence was hopeless. In Gillett v. Rippon (p), the plaintiff sued on a contract to indemnify him against the expenses of a commission of bankruptcy issued at his suit, and he claimed the costs of an action brought by the messenger for his bill. Notice was given to the defendant of the messenger's action (q); and it was contended that the defendant should have paid or stopped the messenger's action, to which there clearly was no defence. Lord Tenterden, C. J., said, “I think the defendant is not liable for the costs beyond the writ; a man has no right merely because he has an indemnity to defend an action and to put the person guaranteeing to useless expense. If he has the costs of the writ it is quite enough." In a subsequent case (7), his lordship decided that the accommodation acceptor of a bill who pays it to a bonâ fide holder after action brought, cannot recover the costs of such action against a person who, having had the bill delivered to him for a purpose which was satisfied, had improperly indorsed the bill to the holder. The acceptor should have paid the debt when demanded, without suit. And in Baker v. Garratt (s), Best, C. J.,

said, that, if a man become surety for a debtor, the creditor cannot recover from the surety the costs of a fruitless suit against the debtor, who has made default, unless he has given notice of his intention to sue (t).

2ndly. Guarantees how affected by the Statute of Frauds.

The Statute of Frauds, 29 Car. 2, c. 3, s. 4 (u), provides "that no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person; 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 authorised."

1st. When the Statute applies.-We will consider to what agreements this enactment has reference. It is clearly settled that the statute only applies to collateral engagements, that is, where there exists a debt or legal liability on the part of a third person (x). The enactment in question has not, either in its words or principle, any reference to an original promise to pay a debt or satisfy a demand or damages, in regard to which no other person was ever responsible. But it applies as well to a contract to be answerable for the debt of another, as to a collateral engagement for the satisfaction of damages recovered or recoverable against him; nor is it necessary that the third party should have requested the person

(t) Semble, and has been requested to sue the debtor, ante, 401.

(u) This statute has no application to parol misrepresentations of the responsibility and character of another person, in order that he might obtain credit, if there be no promise to be answerable for him; and it was therefore held that if such misrepresentations were wilfully and fraudulently, or knowingly made, and caused a damage to the party to whom they were uttered, an action on the case for the deceit and consequent injury, was maintainable; see Pasley v. Freeman, 3 T. R. 51; Haycraft v. Creasey, 2 East, 92; Foster v. Brown, 6 Bing. 396. The object of the statute was

thus, it seems, in some measure indirectly frustrated. To remedy this mischief, it is enacted by the statute, 9 G. 4, c. 14, s. 6, that "no action shall be brought, whereby to charge any person upon, or by reason of, any representation or assurance made or given concerning or relating to the character, conduct, credit,ability, trade or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon, (sic in the statute, no doubt meaning money or goods upon credit,') unless such representation or assurance be made in writing, signed by the party to be charged therewith." (x) See ante, 397.

giving the guarantee to enter into the engagement, or that he should be in any manner a party thereto.

When the engagement is collateral.-If the person for whose use goods are furnished upon the defendant's guarantee be liable at all, the defendant's engagement, though it were the chief inducement to the plaintiff to supply the goods, is collateral, and must be reduced into writing. Thus, where the plaintiff was induced to send goods to a person, with whom he was unacquainted, by the defendant's verbal promise, that "he would see the plaintiff paid," and the plaintiff debited the party receiving the goods, it was held that the defendant's parol undertaking was void; and the Court over-ruled a distinction which had formerly been taken between a guarantee made before and after the delivery of the goods; and decided that, in both cases, the statute applies, if the third party be at all trusted (y).

In the case of Buckmyr v. Darnell (z), the promise was, that, if the plaintiff would deliver his horse to J. E., the latter should re-deliver it safe to the plaintiff; and it was decided to be within the statute. "For where the undertaker comes in aid only to procure a credit to the party, 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 undertaking. But it is otherwise in the principal case, for the plaintiff may maintain detinue on the bailment against the original hirer, as well as assumpsit on the promise against this defendant." It seems that the engagement of a del credere agent to be responsible for the price of goods sold by him for his principal, must be in writing (a).

The inquiry in these cases must, therefore, be directed to this point, namely, whether any credit was to be, or was, given to the third person; in other words, whether he incurred any responsibility to the creditor. This is a question depending not altogether on the particular words of the guarantee or promise of the defendant, but upon the particular circumstances of each case, and the

(y) Matson v. Wharam, 2 T. R. 80; Anderson v. Hayman, 1 H. Bla. 120; Peckham v. Faria, 3 Dougl. 13; 1 Saund. 211, a, note; 5th ed. A guarantee must be declared upon specially,

id.; Mines v. Sculthorpe, 2 Camp. 215; 1 Chitty Pl. 5th ed. 380.

(z) 1 Salk, 27; 6 Mod. 248; 2 Ld. Raym. 1085, S. C.

(a) Ante, 171.

general features of the transaction. And the subsequent conduct of the creditor may be adduced in evidence to show that he viewed the transaction, (it being of a dubious nature), as one of guarantee only. As if the promise be, "you may send the goods to A., and I will take care the money shall be paid at the time;" here, assuming that the words primâ facie import an original engagement, the creditor cannot treat it as such, if he has sent a bill of parcels to A., charging him as the debtor; or has written letters to the defendant terming the promise a guarantee for A., &c. (b). And where an action was brought against a lieutenant in the navy to recover 5761. for clothes, &c., supplied to the crew of his ship; and the promise was "to see the plaintiff paid at the pay-table;" the Court, in deciding that this was a collateral engagement, and was therefore within the statute, relied on the improbability that the defendant, considering his situation, could have intended to become, or was considered to have primarily rendered himself, responsible for so large a sum; and they thought, that, from the nature of the case, the plaintiff relied on the power of the officer over the fund out of which the men's wages were to be paid, and gave credit to that fund rather than to the lieutenant (c).

Where A., an attorney, having commenced certain business for B., which he had undertaken, refused to proceed without a promise from C. to pay all further expenses, Lord Ellenborough held that this was the inchoate business and debt of another, and that C. was not liable on such a promise without a note in writing (d).

It was determined in Read v. Nash (e), that the parol promise of a third party to pay a certain sum and costs, in consideration that the plaintiff would not proceed to trial, and would withdraw

(b) Rains v. Storry, 3 C. & P. 181. So in Parsons v. Walter, Bridgewater Sum. Assiz. 1781, cor. Buller, J., 3 Dougl. 14, note (c), where the plaintiff had agreed with H. to sell him six oxen, and five were delivered, but the sixth was withheld until the money for it was paid, and the defendant said, "he would pay the plaintiff for it" on a named day, and thereupon the plaintiff delivered it to H.; it was held defendant's verbal promise was void.

(c) Keate v. Temple, 1 B. & P. 158.

(d) Barber v. Fox, 1 Stark. R. 270; Parsons v. Walter, ubi suprà.

(e) 1 Wils. 305. The defendant pleaded the statute specially, and the plaintiff demurred. The consideration evidently was the withdrawing the record, without reference to the fact, which seems not to have been admitted, whether the third party had committed an assault for which he was liable. There was no consideration of forbearance. The ceasing a doubtful suit is a good consideration, see ante,

38.

his record, in an action against a third person for an assault, is valid. The Court considered such promise as an original undertaking; that the third party, the defendant in the action for an assault, was not a debtor; that he did not appear to have been guilty of any default or miscarriage; and that, as the cause was not tried, he might have succeeded, and therefore never was liable to the particular debt, damages, or costs: but they recognised the distinction between an original and a collateral promise.

But where 4. had wrongfully, and without the licence of B., ridden his horse, and thereby caused its death, it was held that a promise to B. by a third person to pay him a sum of money, in consideration that B. would not bring any action against A., is a collateral promise to answer for the miscarriage of another, and not being in writing, was void (ƒ). The Court distinguished this case from Read v. Nash. Abbott, C. J., said, "That case is very distinguishable from the present; the promise there was to pay a sum of money, as an inducement to withdraw a record in an action against a third person for an assault. 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 original and not a collateral promise. Here, the third person (A.) had rendered himself liable by his wrongful act, and the promise was expressly made in consideration of the plaintiff forbearing to sue the son."

However difficult it might be to reconcile these decisions (g) in reference to the particular facts of each case, it is satisfactory to reflect that, in both of them, the general distinction between an original and a collateral undertaking was admitted. The legislature obviously intended that, if there were substantially a liability on the part of a third person, even for unliquidated damages, the promise to discharge them should be in writing. They could have used the words default or miscarriage, after the word debt, with no other view.

When the statute does not apply.-But if the credit were given entirely to the defendant, and it were agreed that he alone should be responsible, as if, in fact, the sale were to him, although the goods were delivered to, or for the use of, another

person, the

(f) Kirkham v. Martyr, 2 B. & Ald. (9) See 1 Saund. 211, note.

613.