1862. CRIPPS V. HARTNOLL, to pay, and did pay, the said sum of 80%., and also paid and incurred costs, charges, and expences to the amount of 20%., and was otherwise damnified: whereof the defendant had notice, but did not indemnify the plaintiff' therefrom. There was another special count, on which, however, nothing turned. There were also counts for work done, for money paid, and on accounts stated. The defendant pleaded, to the first count, a denial of the agreement alleged, and also payment: to the common counts, as to 401., parcel &c., payment into Court; and to the remainder, never indebted, and payment. The plaintiff took the 401. out of Court, and joined issue on the other pleas. On the trial, before Hill J., at the Sittings at Guildhall, in Trinity Term, 1861, it appeared that the plaintiff, at the request of the defendant, who agreed to indemnify him, had become bail in the sum of 80%. for the appearance of the defendant's daughter, who had been committed by the magistrates of the Westminster Police Court to take her trial at the Central Criminal Court for a misdemeanor. She, however, did not appear, in consequence whereof the recognizances were estreated, and the plaintiff was compelled to pay the 807.; and he now sought to recover in respect of this and the other expences, &c. On the part of the defendant it was objected that the case came within the stat. 29 Car. 2. c. 3. s. 4., which enacts that "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, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized;" and consequently, as no agreement, memorandum or note in writing was produced, the plaintiff could not recover. The Judge being of this opinion nonsuited the plaintiff, reserving to him leave to enter a verdict. A rule nisi accordingly was obtained in Easter Term, 1861, which was argued in the last Term, on the 10th May; before Crompton, Blackburn and Mellor JJ. W. D. Seymour and Archibald shewed cause.-This case is expressly within the decision in Green v. Cresswell (a), where, a capias having been issued against H. at the suit of R., the plaintiff entered into a bail bond for H., in consideration of which the defendant promised to indemnify the plaintiff against the consequences. The bail bond having become forfeited, the plaintiff sued on the above agreement, but it was held that the case came within 29 Car. 2. c. 3. s. 4., and as there was no agreement, memorandum or note in writing, the plaintiff could not recover. That case is cited with approval in note (1) to Forth v. Stunton, 1 Wms. Saund. 211 e, 6th ed. [Crompton J. referred to Jones v. Orchard (b).] (They were then stopped.) H. James, in support of the rule.-Green v. Cress well (a) is not law, and, if it were, is distinguishable from the present case. Eastwood v. Kenyon (c) is an authority that sect. 4 of 29 Car. 2. c. 3. contemplates only promises made to the person to whom another is liable; (a) 10 A. & E. 453. (b) 16 C. B. 614. 1862. CRIPPS V. HARTNOLL. VOL. II. (c) 11 A. & E. 438. B. & S. 1862. CRIPPS V. HARTNOLL. and therefore that a promise by A. to B. to pay C. a debt due from B. to C., is not within that section. In Smith's Mercantile Law, 467 note (q), 6th ed., the cases are considered, and the author says, "I have only further to observe, that the opinion expressed by the Court in Eastwood v. Kenyon may, perhaps, be thought to diverge somewhat in principle from the decision in the prior case of Green v. Cresswell." [Blackburn J. Looking at that note it rather suggests that Green v. Cresswell (a) is right and Eastwood v. Kenyon (b) is wrong.] The note to Birkmyr v. Darnell, in 1 Smith's Leading Cases, p. 264, 5th ed., after citing Eastwood v. Kenyon, (b) says, "This view, which would limit the generality of the rule laid down by Serjeant Williams, and seems not altogether reconcileable with the doctrine. in Green v. Cresswell, has been recognised and acted upon by the Court of Exchequer, in Hargreaves v. Parsons, where it is laid down, that 'the statute applies only to promises made to the persons to whom another is already, or is to become, answerable. It must be a promise to be answerable for a debt of, or a default in some duty by, that other person towards the promisee.'" The judgment in Hargreaves v. Parsons (c) goes on to say, "This was decided, and no doubt rightly, by the Court of Queen's Bench, in Eastwood v. Kenyon, and in Thomas v. Cook (d)." If Green v. Cresswell is right, it almost overrules the last mentioned [Mellor J. In the note which you have just cited, Green v. Cresswell is said to be in accordance. with Tomlinson v. Gell (e). It is also recognised as good law in Chitty Contr. 452. 454, 6th ed.] In case. (a) 10 A. & E. 453. (b) 11 A. & E. 438. (e) 6 A. & E. 564. Batson v. King (a) Pollock C. B. says, p. 740, "If a man says to another, 'If you will at my request put your name to a bill of exchange I will save you harmless,' that is not within the statute. It is not a responsibility for the debt of another. It amounts to a contract by one, that if the other will put himself in a certain situation the first will indemnify him against the consequences. In Green v. Cresswell, Lord Denman pointed out a distinction between that case and one where the defendant is a co-surety. I do not think that the case itself was rightly decided." In Brittain v. Lloyd (b) Pollock C. B., in delivering the judgment of the Court, says, p. 773, "It is clear, that if one requests another to pay money for him to a stranger, with an express or implied undertaking to repay it, the amount, when paid, is a debt due to the party paying from him at whose request it is paid, and may be recovered on a count for money paid; and it is wholly immaterial whether the money is paid in discharge of a debt due to the stranger, or as a loan or gift to him. The request to pay, and the payment according to it, constitute the debt; and whether the request be direct, as where the party is expressly desired by the defendant to pay, or indirect, where he is placed by him under a liability to pay, and does pay, makes no difference. If one ask another, instead of paying money for him, to lend him his acceptance for his accommodation, and the acceptor is obliged to pay it, the amount is money paid for the borrower, although the borrower be no party to the bill, nor in any way liable to the person who ultimately receives the amount. The borrower, by requesting the acceptor to assume that character which (b) 14 M. & W. 762. (a) 4 H. & N. 739 1862. CRIPPS V. HARTNOLL. 1862. CRIPPS V. HARTNOLL. ultimately obliges him to pay, impliedly requests him to pay, and is as much liable to repay, as he would be on a direct request to pay money for him with a promise to repay it. In every case, therefore, in which there has been a payment of money by a plaintiff to a third party, at the request of the defendant, express or implied, on a promise, express or implied, to repay the amount, this form of action is maintainable." Fitzgerald v. Dressler (a) Williams J. says, p. 385, "The statute only applies where the promise is made to the person entitled to the money." The present case is further distinguishable from Green v. Cresswell (b) in this, that in that case there was no count for money paid. Iu Cur. adv. vult. The judgment of the Court was now delivered by CROMPTON J., who said that, without expressing any opinion as to what might be the judgment of a Court of error on the decision in Green v. Cresswell (b), this Court was bound by that decision. If that case was law, the distinction between it and the present, that the one arose on a bail bond in a civil suit and the other on recognizances for the appearance of a person in a Criminal Court, was immaterial. Neither was it necessary to consider the point whether in order to bring a case within the 4th section of the Statute of Frauds, 29 Car. 2. c. 3., the debt or default must be towards the promisee, as that point was taken and decided in Green v. Cresswell (b). For these reasons the nonsuit was right, and the present rule must be discharged. (a) 7 C. B. N. S. 374. Rule discharged. (2) 10 A. & E. 453. |