for the debt was C's. debt, and the deft's. promise was to answer the debt of another; the credit was not given to the deft. but to another, and to this other were the goods originally charged by the plts. There was no writing. CH. 9. Art. 20. §14. So where the deft. said to the plts., you must supply my Jones v. mother-in-law with bread, and I will see you paid, the court held Cooper. that this was the mother's debt, and so the deft's. promise to see it Roberts 209. Cowp. 227.paid, was collateral, and void as not being in writing. Prom- 1 Phil. Evid. ise void to pay another's debt illegally arrested, &c. 361.-Willis 481. Harris v, cited 2 Selw. 239, 240. Huntbach, 15. December 3, 1751, the deft. acknowledged thus, " re- 1 Burr. 373, ceived of Mr. Harris £19 on behalf of my grandson, which I promise to be accountable for, on demand, witness my hand, S. Huntbach." In an action of assumpsit for money lent and advanced, the court held, that this note was good evidence. 1 Phil. Evid. 2. That it was an original contract, and not a collateral under- & P. 158. taking, for the grandson was a minor, and so not liable. In Ch. 170, a. 5, this case it will be observed that the deft's. contract was held $.7-2 Phil. Evid. 9, 10. to be original, not on account of the form of it, but of the minor's inability to contract. 2 Phil. Evid. 10. 361.-1 Bos. P. 276. § 16. If two persons come to a shop, and one buys goods, Imp. M. P. the other, to gain him credit, promises the seller" if he do not 165.-Bul. N. pay you I will," this promise is collateral; but if he say "let Jones v. him have the goods and I will be your pay-master," this is an Cooper, original undertaking, and for himself, and need not be in wri- Cowp. 227.ting. So, I will pay if A do not, is collateral. A was charged as the debtor, and the undertaking was before the delivery of the goods, and formerly this was deemed material. Roberts 209. son v. Mason. § 17. If the deft. give A. D. a letter of credit to the plt., 3 Cranch, and thereupon the plt. trusts A. D., and he becomes indebted 493, Lawrato the plt., he may have an action against the deft. to compel him to pay this debt of A. D. See several cases of guarantees, ch. 50, by the letter any one might trust A. D. 18. But generally no action lies for the voluntary payment 8 D. & E. 308. of another's debt, as Exall v. Partridge, ch. 9, a. 17. If A Cowp. 139. owe B a debt on judgment, B's agreeing to stay execution on it a reasonable time, is a good consideration for the promise of a third person to pay the debt, though not so as to A. Settree. 19. A unlawfully arrested B for B's debt to him. C, a Willes 482, third person, promised to pay the debt of B to A, in consider- Atkinson v. ation of A's releasing B out of custody. Held, C's promise was void; for where the arrest of a deft. is illegal and void, his discharge is no consideration for another's promise. But if the declaration state a just debt and arrest, by virtue of a writ duly issued out of such a court, it will be intended after verdict the arrest was legal, and so the ground of another promise, will be a discharge of him arrested. So to forbear to sue me on a void security is no consideration for another's Сн. 9. 1 Ld. Raym. 312, Taylor v. Jones. 1 Salk. 27. 1085. promise to pay the debt; and generally for another's promise to pay my debt to be valid, I must owe a just debt. 20. A third person requested a soldier might have leave of absence; this was given accordingly, and the third person promised to bring him back to the captain in 10 days, or to pay a sum of money. Held, the third person was bound to perform, and the consideration was good. See Roe v. Hough. 21. One good distinction is this; if the third person come 2 Ld. Raym. in aid of another, so that either may be sued, his promise is collateral, and must be in writing; otherwise, if the whole credit is given to the third person. Birkmyr v. Darnell; see Sturgis & al. v. Robbins; Schermerhorn v. Vanderhayden; Holly v. Rathbone; Leonard v. Vredenburgh; Lawrason v. Mason & al. 3 East 169, Taylor v. Higgins 8 Johns. R. 202, 206, $22. One who became surety for the deft. before his discharge as an insolvent debtor, was afterwards obliged to give a new bond for debt &c., in lieu of the old one. Held, he could not sue for money paid to his use, though the new bond was Cummings accepted as payment, and the old bond cancelled; for liability to pay for another, cannot give the same cause of action as actual payment on his account; the new bond was not money paid. See Jones v. Brinly, and Nightingale v. Devisme, Child v. Mortley. Hackley 8 D. & E. 610. 4 Johns. R. 461, Stuby r. Champlin 7 D. & E. 204.-5 Johns. $23. A executed to the United States a bond with sureties for duties, and A was named in it as the importer of the goods, and B named in it surety, and paid the bond. Held, he might recover the amount of A, though a third person reR. 176, 178, ally owned the goods. But if three men be principals in a Elmendorf . bond to pay duties, and a fourth their surety, and E paid the bond at the request of one of them, he may recover the amount of the three; but the surety is not liable, having no interest in the distillery; no money was paid to his use. Tappan. 1 H. Bl. 90, 94, Jenkins r. Tucker; 2.4. 24. The plt. voluntarily pays the deft's. debt, how liable or not. The deft, married the plt's. daughter, and went to and see a. 15, Jamaica, leaving her in England, and in his absence she died. The plt. was at the expense of her funeral, suitable to her husband's rank and fortune, though without his knowledge. The plt. recovered for monies laid out, &c. But quære if the plt. could recover for monies he laid out, &c. after her death, to pay debts she contracted in her husband's absence, in a reasonable manner. And Lord Loughborough said, if goods of A be "distrained by the commissioners of the land tax, if a neighbour should redeem the goods and pay the tax for the owner, he might maintain an action for the money against the owner." A sells goods to B; B unable to pay A transfers them to C; he promises to pay A for them; this is a new promise. 5 Taun. R. 450. CH. 9. Art. 20. 25. No writing necessary where a third person engages to pay an execution on a new consideration. As where C had an execution against B, and A promised to pay C the amount of it, in consideration C discharged B, and in consideration B, 8 Johns. R. the judgment debtor, delivered his household goods to A. A's 376, 377, engagement was original, and not within the statute of frauds, Brewster.and it was founded on new considerations, the discharge of B 10 Johns. R. and his said goods delivered to A. Skelton v. 242. 4 Johns. R. Livingston r. $26. A covenant to pay another's debt is not within the statute of frauds, as it does not apply to writings under seal. A covenant of itself imports a consideration, as to all contracts under seal. And every promise to pay another's debt must be 4 Johns. R. in writing, however good the consideration. 422. 27. One Dearborn was in prison for debt, and lodged in 12 Mass. R. the deft's. hands property sufficient to indemnify him; thereon 297, Perley v. the deft. procured the plt. to become Dearborn's bail; and Spring. promised, but not in writing, to save him harmless. Held, an original, and not a collateral promise of another's debt; so not within the statute of frauds; the statute applies only to promises made in relation to to pre-existing debts of a third person. When the deft. promised there was no actual existing default of Dearborn, but the deft's. promise was to indemnify against his future default; this was not a case within the statute, and the deft. promised on property in his hands. Mawbray v. 28. So if the plt. lend a horse to A, on the deft's. request, A is liable on the delivery, and the deft's. promise is 3 Salk. 15, collateral; this requesting the plt. to lend the horse is no more than requesting him to trust A with the horse. See Post. ch. 32. 16, Bourknell.-6 Mod. mire v. Dar 248, 251. 1 H. Bl. Rep. 120, Anderman. son v. Hay § 29. A tradesman delivered goods to A at the request of, and on the credit of B, who says before the delivery "I will be bound for the payment of the money as far as £800 or £1000. Held, B is not bound; for the credit is to A as well as B. A, the son, was debited in the plt's. books, and B, the father, Hob. 211, gave no promise in writing. Cited 2 Selw. 736, 737. 212. 3 P. W. 278. 30. In this case, the deft. gave the note sued, as attor- Mass. S. J. ney to one Low, a person non compos. Friend had no pow- Nov. 1790, Court, Essex, er to contract the debt so as to bind Low; Friend was sued Lewis v. as on his own note, and held to be liable, for whenever one Friend. undertakes to promise for another, and has no power so to do, it becomes his own promise, for a promise must be intended by the parties; the promisee confides in receiving one, and here there would be no promise, if the promisor did not bind himself, as he has no power to bind a third person; the same as to a submission to arbitration. Salk. 70. Chater v. 31. A parol promise to pay another's debt, and also to do 7 T. R. 201, some other thing, is void by the statute, for the plt. cannot se2 Vent. 224.-5 Com. D. 199.-1 Ld. Raym. 312. Сн. 9. 1 Mass. R. parate the two parts of such a contract, and affirm one part to be valid and the other not. A's promise to return a soldier to his officer above. § 32. April 29, 1801, the deft. and Keith gave their note 166, Little v. thus:-"For value received, I promise to pay Capt. Amos Rodgers or order, three hundred dollars in six months from date, with interest until paid as witness my hand. Weston. void. "George Keith, jun. New Jersey, Weston alone was sued, Keith had been declared a bankrupt, 1 Penning 1. and plea, that the deft. and Keith never promised, &c. It was A parol prom- urged, that Weston's undertaking was only collateral, and not ise to pay another's debt is joint, as alleged in the declaration. Sedgwick and Sewall thought it was collateral, Strong was of a different opinion. The plt. had leave to amend. Strong held it to be a joint note, and the word I as repeated before each name, and the word surety as used, as is often done, only for the surety's benefit. Quære, if his opinion was not right? See Hunt, adm. v. Ad ams. ters. Court of 33. How far the consideration, in a written promise to Wain v. Warl- pay the debt of another must be expressed in the writing; see ante, Consideration. In this case it was held, the consideraApril, 1804, tion as well as the promise, must be in writing, or it is nudum King's Bench. pactum, and that no parol evidence can be given of the con3 Johns. R. sideration. The authority of this case may well be doubted. See Hunt adm. v. Adams, ch. 11, a. 1, 14. where a different. opinion is held, points considered, 4 Wheaton, 85 to 98, and many cases. 210, but see Ch. 50, s. 8. 7 Mass. R. 301, Sturgis § 34. The deft., in writing, requested the plts. to trust one & al. v. Rob- Davis, not exceeding $500, to pay if he did not-how held? bins. ART. 21. Certain promises raised by law, the principles whereon—and sundry cases—seem to be like the Roman quasicontracts. These obligations, quasi-contracts as well as contracts, appear in this law to have been different from obligations ex delicto and obligations quasi ex delicto, as our contracts expressed or implied, have been viewed as different from torts; hence the Roman emperor says, having treated de obligationibus ex contractu et quasi ex contractu, sequitur ut de obligationibus ex maleficio, et quasi ex maleficio dispiciamus. Jus. Inst. L. 4. T. 1, cites D. 47, T. 2; Cod. 6, T. 2; Jus. Inst. L. 3, T. 28, where one becomes liable to another's action, yet not ex maleficio. § 1. The law, founded in reason, presumes a man makes a promise where he ought to make one, for the law intends that every man engages to perform what his duty and justice require. As if I employ one to do my work, the law implies that I engage to pay him what it is worth, and he may have this action of assumpsit on a quantum meruit, and say therefor, I promised to pay him as much as he reasonably deserved to have. So if I buy goods of one, and no price is set, he may have this action on a quantum valebant; and say I promised to pay him as much as they were worth. 2. So if I state with A our accounts, and I am found to owe him a balance, the law implies I engage to pay it, and he may have an action against me, and state that he and I settled our accounts together, (insimul computasset,) and I was found in arrear so much, and promised to pay that sum. 3. The law also implies, that every one who undertakes any office, employment, trust, or duty, engages to perform it with integrity, skill, and diligence; and if he do not, the party injured is entitled to his special action on the case: as if a sheriff neglect to execute a writ sent to him, or wilfully makes a false return; or if he or his gaoler suffer one taken on mesne process to escape, he is liable to an action. See Goodwin v. Gilbert, Ch. 32, a. 4, 15. § 4. So if an attorney betrays his client's cause, or being retained, neglects to appear, he is liable to this special action on the case. The law also implies, that a common innkeeper engages to secure the goods of his guest in his inn; that a common carrier or bargemaster engages to answer for the goods he carries; that a common farrier engages to shoe a horse well, and without laming him; that a common taylor, or other workman, engages to do his work in a workmanlike manner, in which, if he fails, this action lies, and for reasonable damages. § 5. But if I employ one to transact any of these concerns, whose common profession and business it is not, the law implies no such general undertaking, but in order to charge him with damages, there must be a special agreement. 6. Actions on notes, bills, bonds, and other contracts, for labour done, and goods sold, are so plain, that scarcely any more attention is necessary than to look at the forms, and see they are correct. However numerous and variant the actions of assumpsit appear to be, they are all reducible to a few simple principles whenever the consideration is sufficient. CH. 9. Art. 21. $7. When for the badness of the goods, &c, can the deft. reduce the plt's. price, or bring a cross action. See Everett 7 East. 479, v. Gray above; held, to the cross action-but contra when the Bastenr. plt. sued a quantum meruit for work done and materials found; Butter. held, the deft., even without notice to the plt., might be allowed to prove that the work done was not worth so much as the plt. claimed, because badly done; the plt. objected, that if so, the deft. ought to bring his cross action. 2d. If it appear the plt. has been paid on account as much as the work was worth, he cannot recover. 3d. It seems the deft. may be allowed |