Fell on Guaran tees, p. 1. Any special pronise. Fell, p. 9. Debt, default, or miscarriage of another. 1 Wilson, 305, Read v. Nash. Cowper, 227, Id. 228, by Ld. Rep. 80, Mat- Sel. N. P. 830. Guarantees. "A guarantee is a promise to answer for the payment "of some debt, or the performance of some duty, in case "of the failure of another person, who is, in the first ✦ instance, liable to such payment or performance.” And it is necessary, not only that there should be a consideration for such an undertaking, but that the consideration should be in writing. By the statute of frauds, 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 authorized. This may be made either at the time of the accruing of the debt or before, or again, it may be given after the debt, default, &c. There must at some period or another, be a debt, &c.; it is not sufficient that a promise be made to pay damages in an action of assault and battery, if the plaintiff will withdraw his record. Still, the debt need not exist at the moment of the promise; as where the defendant said, "I will pay you if Smith will not`:" speaking with reference to goods which had not then been delivered; in this case, the Court held, that there was a collateral undertaking within the statute. The promise held, in case the other should not pay. "Where the undertaking is before delivery, and there is a direction to deliver the goods, and I will see them paid for, it is not within the statute of frauds." Great care is employed in distinguishing between an original and a conditional undertaking. An application for money was made thus: "This is to certify that it Hillier was an infant, and the Court considered this an Harris v. Hunt bach; see 1 Bos. & Pul. 158, original promise, for the infant could not contract. Keate TemBut the following was held to be an original promise; ple. "I, R. H. do agree to pay Mr. I. M. 50l. for timber "to house in A. C., out of the money that I have to pay W. W., provided W.'s work is completed." The work was completed, and the Court entertained no 2 Bingham, 439, doubt upon the subject. Dixon v. Hat field. tracts, p. 195, Further, if the party promising be in any respect liable, either alone or jointly with others, the case will Comyn on Conbe out of the statute, and the same result will occur if the person giving the undertaking derive an immediate benefit from it, although the promise be in effect to satisfy the debt of another. As where a broker employed to sell goods, promised the landlord his rent if he would desist from distraining. 3 Burrow, 1886, ham, 264, Paulin. So where the plaintiff, who was an insurance broker, had a lien on certain policies, and the defendant, who managed the insurance concerns of the principal for whom the insurances had been effected, promised that he would provide for the plaintiff's acceptances when due, on condition of his giving up the policies; the Court 2 East, 325, Castling v. were of opinion that this was an original undertaking Aubert. on the defendant's part. And by Lord Ellenborough, Id. 331. "In the case of a bill of exchange, for which several "persons are liable, if it be agreed to be taken up and 66 paid by one, eventually others may be discharged; "but the moving consideration is the discharge of the "party himself, and not of the rest, though that also "ensues." A person being insolvent, one Weston promised to pay all the creditors 10s. in the pound if they would assign their debts to him; they agreed to this, 1 New Rep. 124, and the Court considered the compact as a purchase of Anstey v. Mar den. 5 Taunton, 450, Browning v. Stallard. Scholes v. Hampson and another, Fell, p. 27. 2 Wilson, 94, Fish v. Hutchin son. 7 Term Rep. 201, Chater v. Beckett. By Bayley, J. 690, Gibbons the debts, and not an agreement within the statute to answer for the insolvent's obligations. And so again it was, where a man not being in a condition to pay for goods, transferred them to another, who agreed at once to pay for them. A partnership is, of course, not within the statute. And the rule of joint credit has been carried so far that, in a case where the vendor knew that neither a partnership, nor even a community of interest subsisted between the purchaser and a person who came forward to be answerable for him, but the credit was given to both jointly, and the invoices made out in their joint names; it was, nevertheless, held at Nisi Prius to be a joint promise, and not within the statute. A promise to pay the debt of another in consideration of forbearance to sue, is void without writing, for there is the debt subsisting and an undertaking to satisfy it. And it is observable, that if a promise to pay the debt of another be coupled with one for the performance of another act, which latter need not be in writing, you cannot, on the principle of entirety which governs contracts, enforce the agreement without a memorandum or writing. When the statute has been once satisfied, a new promise which saves the statute of limitations, although made verbally, will be sufficient; for, "to satisfy the " statute of frauds there must be a promise in writing, "and to take the case out of the statute of limitations "there must be a promise within six years." And if any act is done to extinguish the original debt, a promise to pay that debt becomes independent, and so not within the statute; as where the plaintiff consented to discharge his debtor, who had been taken upon a ca. sa., out of custody, and in consideration of that discharge the defendant undertook to pay the debt. Here the promise was no longer one to satisfy the debt of another, and so judgment went against the party sued upon the new promise. Not only the promise, but the consideration also must be in writing, and signed by the party to be charged, or his agent. Barn. & Ald. 297, Goodman 5 East, 10, Wain v. Warlters. With regard to the decisions in equity, where part performance of a contract will supersede the necessity of putting it in writing notwithstanding the statute, Mr. Fell says, "It is difficult to foresee how they p.34 66 may be applicable to the question of guarantee.” What a suffi cient memoran dum, &c. We have seen that there must be a good consideration; there must, moreover, be a mutuality of contract, but this latter requisite need not appear on the face of the instrument; the furnishing goods and giving credit are Fell, p. 43sufficient. Lastly, the parties to the agreement should be mentioned in it. You commonly address the person who extends the credit; as "Mr. A. B. I guarantee," &c. Id. p. 46. It has been held that a letter is a sufficient memorandum to ensure the validity of the contract. And this is so, although the letter be written to a man's own agent, setting forth the terms of an agreement as concluded by him. 3 Atkins, 503, by Lord Hard wicke. Coe v. Duffie ld The guarantee itself did not state the consideration of forbearance for which it was given, but the terms had 7 Moore, 252, been proposed previously in a letter, and had subsequently been recognized; it was holden that the guarantee and correspondence might be taken together. "To pay you, on T. L's account, 50l. at the expira❝tion of the usual credit, in the event of any deficiency 2 Chitty. Rep 403, Atkinson 66 on his part so to do;" this was held insufficient as v. Carter. a guarantee, for not disclosing the consideration on the face of it. "I have no objection to guarantee," without any date, or proof that the offer had been accepted, held insufficient. But a note to guarantee the present account of H. M. a Starkie, 371, Symmons v. Want. 2 Bro 1. & Bing. 211, Russell v. Moseley. s. 8. due to R. T. S. of L., and what she may contract from this day to the 30th of September next, held a sufficient guarantee. Any writing having respect to these requisites will constitute a guarantee; as a bond, an agreement, a bill of exchange, a promissory note. The stamp upon a guarantee, where the matter thereof is of the value of 201. or upwards, is prescribed by 55 Geo. 3, c. 184; but there is an exception of "memoran " 9 Geo. 4, c. 14, dum, letter, or agreement, made for or relating to the "sale of any goods, wares or merchandizes." What a suffi. The signature must be by the party or his agent lawfully authorized. "I, James Crockford, agree to sell," &c.; this was held a sufficient signature. Even where the party did not intend his signature to a letter to be binding upon him, but that letter, nevertheless, recognized 161.318, Taw- the terms of an agreement which had been entered into, it was considered a sufficient signing within the 3 Brown Chancery Cases, ney v. Crow ther. 3 Atkins, 503, by Lord Hardwicke. Fell, p. 83. Ibid. 1 Vesey, sen. 6, Welford v. Beezely. Fell, p. 86. statute. "Where the substance of the statute has been complied with in a material part, the forms have never "been insisted upon." So that sealing, with a sufficient attestation of the seal, seems to be a legitimate accomplishment of the ends proposed by the statute, which was framed to reduce contracts to a certainty. And signing by a mark would appear to be a valid execution. Signing as a witness, if the person so signing be privy to the contents of the instrument, will be binding. be A general agency as clerk to a mercantile house, does not seem to confer the authority of signing guarantees without more; but such a general authority may given. And the agent need not be constituted by writing; even a very slight verbal authority will be deemed sufficient. It was proved that a boy of sixteen had signed for his father in three or four instances, and that the son had accepted bills, and Lord Ellenborough con |