No. 911.

Book 2, part 2, tit. 4, chap. 7, sec. 1,2.

No. 912.

6. Unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, signed by the party to be charged therewith, or some person by him thereunto lawfully authorized.

SECTION 1.-OF PROMISES MADE BY EXECUTORS OR ADMINIS

TRATORS.

911. Executors and administrators are liable for the debts of the deceased persons whom they represent, only in their representative capacity, to the extent of the assets which have actually come to their hands, or for, which they may be lawfully charged. If they make any promise to pay such debts, it applies only to such assets. But the executor or administrator may, if he will, undertake to pay the debt out of his own estate; in this case, to prevent perjuries, the statute requires that the promise shall be in writing, and this writing must state the consideration upon which the agreement is founded. (a)

SECTION 2.-OF PROMISES MADE FOR THE DEBT, DEFAULT,

OR MISCARRIAGE OF ANOTHER.

912. Promises of this sort are called guarantees. A guarantee is a promise made upon a good consideration, to answer for the payment of some debt, or the performance of some duty, in case of the the failure of another person, who is, in the first instance, liable to such payment or performance. (b)

To comply with the requisitions of the statute, the agreement must, 1, be in writing; 2, made upon a sufficient consideration; and, 3, be to fulfil the engagement of another. The nature of the writing and what is a sufficient signature will be examined in another place. Here will be considered, 1, the nature of the

(a) Addis. on Contr. 107; Saunders v. Wakefield, 4 B. & Ald. 601. See Patton v. Williams, 3 Munf. 59.

(b) Dole v. Young, 24 Pick. 250, 252.

No. 913.

Book 2, part 2, tit. 4, chap. 7, sec. 2, § 1.

No. 913.

engagement, or for what debt a guarantor is liable to answer; and, 2, the nature of the default or miscarriage for which he agrees to become responsible.

§ 1.—of the nature of the debt for which the guarantor is liable. 913. The very term guarantee implies that some other is the principal debtor, but a default may arise upon an executory contract, and a promise to pay for goods to be furnished to another, is a collateral promise to pay on the other's default, provided the credit, in the first instance, was given exclusively to the other. (a)

It is a general rule, that when a promise is made by a third person, previous to the sale of goods, or other credit given, or other liability incurred, it comes within the statute, when it is conditional upon the default of another, who is solely liable in the first instance, otherwise not; the only inquiry to ascertain this is, to whom was it agreed that the vendor or creditor should look in the first instance? Many nice distinctions have been made on this subject:

1. When a party actually purchases goods himself, which are to be delivered to a third person for his sole use, and the latter was not responsible; this is not the case of a guarantee, because the person to whom the goods were furnished never was liable.(b)

2. Where a person buys goods, or incurs other liability, jointly with another, but for the use of that other, and this fact is known to the creditor, the guarantee must be in writing.

3. A person may make himself liable, by adding his credit to that of another, but conditionally only, in case of the other's default. This sort of promise comes immediately within the meaning of the statute, and, in these cases, is sometimes called a collateral promise.(c)

(a) As to the form of a guarantee, and the difference between an offer to guarantee and a guarantee, see Burg. on Sur. c. 2, p. 16; Addison on Contr. 107, 114.

(6) Berkmyr v. Barrell, 1 Salk. 27. See D'Wolf v. Raybaud, 1 Peters, 476. (c) Meade v. McDowell, 5 Binn. 195.

No. 914.

Book 2, part 2, tit. 4, chap. 7, sec. 3, 4.

No. 916.

§ 2. Of the nature of the miscarriage for which the guarantor is

liable.

914. The term miscarriage, used in this section, has not the same meaning as the words debt or default. It comprehends that species of wrongful act, for the consequences of which the law would make the party civilly responsible. The wrongful riding the horse of another, without his leave and license, and thereby causing his death, is clearly an act for which the party is responsible in damages; and therefore falls within the word miscarriage. This term is more properly applicable to a ground of action founded upon a tort, than to one founded upon a contract; for, in the latter case, the ground of action is, that the party has not performed what he agreed to perform, not that he has misconducted himself in some matter for which by law he is liable. But the words miscarriage and default, apply to a promise to answer for another with respect to the non-performance of a duty, though not founded upon a contract. (a)

SECTION 3.-OF AGREEMENTS IN CONSIDERATION OF MARRIAGE.

915. This clause does not extend to the contract of marriage itself, therefore promises of marriage are binding though not reduced to writing, and signed by the party sought to be charged thereon. (b) But all promises and agreements made by one person in consideration of the completion of a marriage made by another, are within the statute and must be reduced to writing, whether they are executory or executed.(c) SECTION 4.-OF CONTRACTS FOR THE SALE AND PURCHASE OF LAND OR REALTY.

916. The note or memorandum of the "agreement for the sale and purchase of lands, tenements, or here

(a) Kirkham v. Marter, 2 Barn. & Ald. 516.

(6) Harrison v. Cage, 1 Raym. 386; Bac. Ab. Agreements, C 3. (c) Addis. on Cont. 96.

No. 917.

Book 2, part 2, tit. 4, chap. 7, sec. 5.

No. 917.

ditaments, or of any interest in or concerning them,' must show that there was an agreement, on the part of the vendor, to sell, and of the vendee, to buy; but no technical language or words of form are requisite ; both the subject matter of the sale and the price to be paid for it, must be specified. (a)

Numerous questions have arisen as to what shall be considered "lands, tenements, or hereditaments, or any interest in or concerning them." Every contract for the conveyance of land, whatever may be the consideration of it, is a contract for the sale of land within the meaning of the statute. (b) And an agreement for growing crops, which are not to be taken out immediately, is a contract concerning land; (c) but when the bargain is that the crop shall be removed immediately out of the ground, it will be considered a contract for the sale of personal chattels. (d)

SECTION 5.-OF PROMISES NOT TO BE PERFORMED WITHIN ONE YEAR.

917. The contracts to which this clause refers are those which, by the express agreement of the parties, are not to be performed within one year from the making thereof; and not to agreements depending upon a contingency either within or beyond the year. The word performed does not signify an inchoate performance, or part execution of the agreement; and the provisions of the statute render a contract void, if it appear to have been the understanding of the parties, at the time, that it was not to be completed within a year, although it might be, and was in fact, in part

(a) Saunders v. Wakefield, 4 B. & A. 601; Hughes v. Parker, 8 M. & W. 247.

(b) Frowman v. Gordon's Heirs, Litt. Sel. Cas. 193.

(c) Crosby v. Wadsworth, 6 East, 602; Emmerson v. Heeliss, 2 Taunt. 38. (d) Parker v. Stanilands, 11 East, 362; Warwick v. Bruce, 2 M. & S.

No. 918.

Book 2, part 2, tit. 4, chap. 7, sec. 6, § 1, 2.

No. 920.

performed within that period.(a) But an agreement which may or may not be performed within a year is not required to be in writing: it must appear from the agreement itself that it is not to be performed within a year.(b)

SECTION 6.-OF THE MEMORANDUM OR NOTE OF THE AGREEMENT.

918. The agreement must be in writing, but the form is not material; and the signature must be affixed to it. This will form the subject of two divisions.

§ 1.—Of the form of the note or memorandum of the agreement. 919. This need not be formal, nor drawn with technical precision; any thing under the hand of the party showing that he has entered into the agreement, and upon what terms, is sufficient, although it may be a mere recognition or adoption of a prior contract. An endorsement, or memorandum on the back of a lease, acknowledging that he had agreed to take the premises; or a letter referring to another containing the contract, and agreeing to be bound by it, will be sufficient.(c)

But it must be remembered that there is a distinction between a promise to do a thing at a future time, as, "I have no objection to guarantee,"(d) and actual present agreement, "I do hereby guarantee." In the former case there is no present engagement, and, unless notice of acceptance be given, the parties are not bound, while in the latter there is a positive obligation.

§ 2. Of the signature to the memorandum or note.

920. The statute requires that the memorandum or note shall be signed "by the party to be bound;" as it is not required that the signature of the other party

(a) Boydell v. Drummond, 11 East, 142; Bracegirdle v. Heald, 1 B. & A. 722; Birch v. Earl of Liverpool, 9 R. & Cr. 392; Hinckley v. Southgate, 11 Verm. 428.

(b) Russel v. Slade, 12 Conn. 455.

(c) Jackson v. Lowe, 1 Bing. 9; 2 B. & P. 238.

(d) Symmons v. Want, 2 Stark, 371; Mozley v. Tinckler, Cr. M. & Ros. 692; McIver. Richardson, 1 M. & S. 557.