tract to B, and verbally promised to pay it to C in consideration of his release by B. The court held that the Statute of Frauds has no reference "to a promise by A to pay money he owes by contract with B to C. This is his debt; the mere direction in which he pays it not altering the character of the contract from an original obligation. There is no difference between a debtor promising to pay his creditor directly so much money which he owes him, and promising his creditor to pay a third person the same sum by agreement be tween the three. The last promisor is paying his own debt, and creating his own obligation, not assuming another's." Barker v. Cornwall, 4 Cal., 16.

Barker . Bucklin, 2 Denio, 45 (1846). Plaintiff held a bond of one F. Defendant promised plain. tiff, in consideration of his forbearing to sue F on his bond, that defendant would pay to plaintiff a sum of money which he owed F for a pair of horses, such sum to be in part satisfaction of the debt F owed the plaintiff. The court held that this promise was not within the Statute of Frauds as it was not a promise to pay the debt of a third person, but the payment of the promisor's own debt to a person designated by the promisor's creditor, who had, in fact, a right to make such payment a part of the contract of sale.

Runde v. Runde, 59 Ill., 98 (1871). A owed B and gave him his note for amount exceeding the indebtedness, secured by mortgage worth full amount of the note. A then became indebted to C, but could not pay. They all met together and agreed, that, by virtue of the claim A had on B for the difference

between the actual debt and the amount of the mortgage, B should pay such difference to C in satisfaction for what A owed C. Held, B's promise was an original undertaking to pay to C, not A's indebtedness to C, but his own indebtedness to A, and therefore not within the Statute of Frauds (Darst v. Bates, 95 III., 493).

McClaren v. Hutchinson, 22 Cal., 187 (1863), A was indebted to B for work done on A's farm. A sold his farm to C who agreed with A in writing to pay B what A owed him. Then B agreed verbally with C to release A from the debt and look to C for payment; B sues C. The Court ruled that the case was not within the Statute of Frauds. A being indebted to B for work done, and C being indebted to A for purchase money, A and C mutually agree that C shall pay A's debt and this arrangement is assented to by

B. "Here is a mutual agreement by the parties interested, and it cau make no difference that this mutual agreement was not perfected at the same moment of time, or that all were not present at the time of its completion. . . . . B's assent to the agreement between A and C gave them a right of action against the defendant." Rowe v. Whittier, 21 Me., 549.

Robinson v. Gilman, 43 N. H., 485 (1862). A was indebted to B on promissory notes, C promised to B that if B would not bring suit on said notes and summon C as trustee of A, he would see that the notes were paid. As C was answerable as trustee for a large amount of A's property, the Court held that the debt he promised to pay was also his own debt and therefore not within the Statute.

Nugent v. Wolfe, 111 Pa., 471

(1886). Bank had obtained judg. ment against Power & Co. Nugent went security for Power & Co. for stay of execution upon said payment, being induced to do so by Wolfe, who verbally promised, in consideration therefor, to indemnify and save him "harmless from any loss or liability, and from paying anything by reason of his so going security." Judgment for defendant. Appealed. Affirmed. "The only consideration for the alleged agreement disclosed by plaintiff's offer is the disadvantage to him of the risk he incurred by becoming bail for stay of execution on the judgment against Powers & Co. In consideration of the risk or contingent liability thus assumed by plaintiff at defendant's request, the latter promised and .agreed to pay the judgment, or see that it was paid by Powers & Co., and thus save the plaintiff from the necessity of paying the same. . . . . If it is not an agreement to answer for the debt or default of Powers & Co., it would be dif ficult to say what it is. Their liability to the bank still remained. The only consideration moving between the promisor and promisee, as claimed by the latter, is the risk he incurred in becoming bail for Powers & Co. There is no testimony, nor was any offered, to show that defendant had any personal interest in the judgment on which bail was entered, or that he held property or funds that should have been applied to the payment thereof. So far as appears, it was the proper debt of Powers & Co., and the substance of defendant's agreement is, that be would see that they paid it; and if they failed to do so he would pay it for them. It was literally a promise to answer

for the default of Powers & Co. Plaintiff's liability as bail for stay was merely collateral to the debt in judgment, and had in contemplation nothing but the paymert thereof to the bank The promise of defendant is within the Statute, and cannot be enforced because it is not in writing:" Ware v. Morgan, 67 Ala., 467; Underwood v. Lovelace, 61 id., 155; Beal v. Ridgway, 18 id., 117; Stryon v. Bell, 8 Jones (N. C.), 225.

Brown v. Weber, 38 N. Y., 187 (1868). H had contracted in writing to build a mill for defendant, on defendant's land. After the frame had been erected, H contracted in writing with plaintiff that plaintiff should complete the building. Plaintiff began work but soon told defendant that he was afraid H could not pay him; defendant, by way of inducement, then verbally promised that if plaintiff finished the mill according to contract, he, defendant, would see that plaintiff would get his pay and lose nothing by it. Held, that the receipt or non-receipt of a consideration by the promisor was not always conclusive, and certainly not in this case. The question was whether the defendant made a contract with the plaintiff to finish the mill, or whether he merely became security that H should pay plaintiff for his work. The latter view accords with the facts of the case, and the promise not being an independent one, is void by the Statute of Frauds. It might perhaps be questioned if the defendant's interest in having the mill built on his own land is not sufficient benefit or advantage to himself to impart to his promise the character of an original promise: Read v.. Nash, I Wils., 355; Fish v. Hutchinson,

2 Wils., 94; Simpson v. Patton, 4 Johus., 222; Shingerland v. Morse, 7 Johns. Rep., 463; Skelton v. Brewster, 8 Johns., 576; Gold v. Phillips, to id., 412; Meyers v. Morse, 15 id., 425; Olmstead v. Greenly, 18 id., 12.

In the following cases the courts have looked more toward the con. sideration as a means of settling the question. They have pointed out just how much or how little is necessary to constitute a consider ation, which, when received by the promisor, will enable him to discharge what is apparently a third, person's debt as if it were his own; that is, free from the statutory requirements governing the payment of another's debt.

Arnold v. Stedman, 45 l'enna., 188 (1863). A sold land reserving the right of entry for non-payment of balance of purchase money on a certain date. Before this date S filed a mechanic's lien for building a barn for the vendee. A brought ejectment upon non-payment by vendee, which resulted in giving his vendee a year's more time in which to pay the balance; while this suit was in progress, A prom. ised S that he would pay him the mechanic's lien when the property came back to him if S would stop proceedings on the lien. They agreed to this. Upon non-payment by the vendee when the time had elapsed, A sold the land to other parties, and S sued A for the amount of the lien. Judgment for plaintiff. Appealed. Affirmed. "Here, then, was a lien or claim upon property in which A had an interest, and it was a benefit to him that no proceedings should take place on the mechanic's lien held by S while his ejectment was in progress. The consideration, there

fore, as regarded A for his promise was the benefit or advantage to himself arising from S's relinquishing proceedings upon his mechanic's lien. The consideration did not proceed from or to the debtor, but was an entirely new or fresh one between A and S, and was a new and original binding contract, A's object being not to answer for the debt of his vendee, but to subserve a purpose of his own. We do not, therefore, think the Act of 26th April, 1855, includes this case, and if such a defence were available, it would only sanction what would be a gross fraud on the part of the plaintiff in error."

Elkin v. Timlin, 151 Penna., 491 (1892). Defendant had contracted to sell his interest in land to plaintiff, and also the interest of a cotenant. Plaintiff objected to taking deed of the co-tenant for fear there might be judgments against him. Defendant by way of inducement then promised to pay all of cotenant's judgments. The Court held that this was not a promise to pay the debt of another, but "an original undertaking to indemnify based upon a sufficient consideration." That consideration was self-interest. Defendant "was, at least, interested in effecting the sale of Watt's (co-tenant's) interest in the land because the sale of his own interest depended on that. Plaintiff had agreed to buy both interests, but not either without the other." In line with this is the case of Alger v. Scoville, 1 Gray, 39!.

See also Malone v. Keener, 42 Penna., 85: Stout v. Hine, 43 id., 30; Whitcomb v. Kephart, so id., 85; Townsend v. Long, 77 id., 143: Fehlinger v. Wood, 134 id., 525, where the promise was sustained;

and Allshouse v. Ramsey, 6 Whart., 331; Shoemaker v. King, 40 Pa., 107; Miller v. Long, 45 id., 350, where the promise was held to be void.

Emerson v. Slater, 1 Pet., 28 (1859). The plaintiff, a contractor, was under contract with a railroad company to build its road. Work ceased when company's credit was shaken. A stockholder of the company, the defendant, entered into a written contract with the contractor, that if the latter would pay him one dollar and complete the work as originally planned, he, the defendant, would pay him in cash and notes, the notes to be applied to the indebtedness of the railroad company to the plaintiff, and the agreement in no way to affect any contract of the plaintiff with the railroad. "Prior to the date," of the defendant's contract with plaintiff, "the railroad company had failed and was utterly insolvent, owning nothing, it seems, except the securities transferred to the defendant for his indemnity in this transaction, and the franchise of the road. Unlike what was exhibited in the former record, it now appears that the defendant had large interests of his own, separate from his relation to the company as a stock holder, which were to be promoted by the arrangement. He had loaned to the company railroad iron for the use of the road amounting in value to the sum of $68,000, and, as a security for payment, held an assignment of the proceeds of the road.to that amount with interest, which was to be paid in monthly instalments of $5000. Now, unless the bridges were completed and the road put in a condition for use, there would be no proceeds; and as he had already taken into his possession all the

available means of the company to secure himself for this new liability, should the road not be completed, the company could not pay for the iron. In this view of the subject it is manifest that the arrangement was mainly to promote the individual interest of the defendant. We think it is clear that the promise of the defendant was an original undertaking upon a good and valid consideration moving between the parties to the written agreement."

....

Anderson v. Davis, 9 Vt., 136 (1837). B, a builder, contracted with A, the defendant, to erect a building; afterward B engaged C as his partner and both worked until B fell ill, and worked ceased. A then promised C to pay him for his work already done and what he should afterward do. C sues A for both sums on the verbal promise. "There was no original privity between A and C. A employed B and B employed C. To B alone could C look for his labor up to the time of the defendant's promise to the plaintiff. . . . . If A became holden to C for this claim against B as collateral to B, and the claim still remained against B it (the promise) was within the statute. But if A was to assume the debt, and he alone be holden, and B to be discharged then the contract was not collateral, but independant, and not within the statute and required no note in writing, nor special action therefor. . . . . Assuming that the contract was that C was to have no further claim on B, and that this was what constituted the consideration for A's promise together with C's continuing his work, this brings us to another point in the case." (Judgment for defendant reversing court below on a point of evidence.)

Nelson v. Boynton, 3 Metc., 396

(1841). A son promised that in consideration that the holder of a promissory note of his father would not sue upon it, to pay it himself. The Court held that this was not an original, but a collateral promise, for its principal object was not to benefit the son but the father. "Forbearance to sue is a good consideration for a written promise, but not such a consideration that would make the promise an original undertaking. "This is a collateral promise to pay the debt of another and void because not in writing. In the mind of the Court, then, the filial interest of a son in preserving his father's credit and saving the family name and honor from the risk of suffering reproach in a public court room is not such a 'selfinterest' as will support his promise to pay his father's just debts." This case is approved and followed in Westheimer v. Peacock, 2 Iowa, 528.

Chandler . Davidson, 6 Blackf., Ind., 367 (1843). A widow verbally promised to pay a debt owing to plaintiff by her late husband. "It is said, however, that considering her as being possessed of the goods under the will, she was under a moral obligation to pay the debts of the estate to the value of the goods, and that such obligation was a sufficient consideration for the express promise sued upon. The promise was to pay, not the promisor's own debt, but a debt due by her deceased husband, and such a promise to be the foundation of a suit, must be in writing, by the Statute of Frauds unless the consideration be sufficient to give to the promise the character of an original undertaking. . . . . There are cases, however, in which a new consideration passes at the time of

the promise between the newly contracting parties of such a character, that it would support a promise to the plaintiff for the payment of the same sum of money without reference to any debt of another..... But it is evident that the moral obligation relied on in this case was not a consideration of that description."

B

Bumford. Purcell, 4 Green, Iowa, 488 (1854). "B as principal and P as security signed a note to D for town lots purchased by B. Before the notes matured, B proposed orally that he would relinquish the lots to P if P would pay the note and save B harmless. soon after left the State. After judgment was obtained against P on the note he paid the same; and subsequently in a suit against B for the amount, B proposed to prove by parol the agreement under which P was to pay the note, and B reliuquished to him the lots." Held, parol agreement void. Judgment for plaintiff. Appealed. Affirmed. "P was legally liable as surety to pay the note to the holder, but that liability did not exist between P and B. No consideration or agreement in writing had passed between them. B agreed to relinquish his right to the lots, but did not do so. A promise to release is not a relinquishment. A promise to pay is not a payment. Even an agreement in writing to answer for the debt of another has been held to be void if no consideration move between the plaintiff and defendant, either of forbearance or otherwise. Elliot v. Giese, 7 Har. & J., 458; Leonard v. Vrendenbugh, 8 Johns., 29; Bailey v. Freeman, 4 Johns., 280; Taiuney v. Prince, 4 Pick., 385.

The bill of exceptions shows that the parties agreed to make an agree