The opinion of the court was delivered by
Pierpoint, J.
The first question raised by the defendant upon the exceptions in this case, is, that there is a fatal variance b 'tween the allegations in the declaration, and the proof given upon the trial.
It is alleged in the declaration, that the plaintiff had instituted a suit in his name against one Brown, and had caused a large lot of mill logs to be attached thereon, as the property of Brown, and had caused Jairus Rood and Daniel Hinkson to be summoned as Brown’s trustees. Up-on the trial, it appeared from the evidence that the suit was brought in the names of the plaintiff and A. A. Cross, who had formerly been co-partners, but that at the time the suit was commenced, the plaintiff was the sole owner of the debt.
[646]*646The court instructed the jury that if the plaintiff was the real owner of the debt sued in the name of L. & A. A. Cross, there was no variance that was fatal to the declaration, and we think that* in so doing, the county court was entirely correct. The plaintiff, in setting out the proceedings in which the attachment was made, and the persons summoned as trustees, was not required to set them out with the particularity that would have been necessary in setting out proceedings on which the declaration was founded. The plaintiff, in this case, was simply laying the foundation for an allegation of the consideration on which the contract was made, to enforce which this action is brought. It was not necessary that he should have set out the name of the party in whose favor the suit was brought, and, in this case, if the words “ in his name ” were stricken out, the declaration would be perfectly good. All that it was necessary for the plaintiff to allege, was, that property had been attached, and was held, and that certain persons had been trusteed on a legal process issued on a debt due to him, and which he had the right to control, and this would be necessary, only for the purpose of showing that he had the right to enter into the contract set forth, and the power to perform it on his part.
The defendant further claims that the trustees could not legally have been made chargeable in that proceeding, if it had been continued. Whether this is so or not, is a question that we think can not be inquired into in this case. The plaintiff had summoned them as trustees of Brown, and claimed the right to make them chargeable. This claim he abandoned, and discharged the trustees in consideration of the promise on the part of the defendant, and this, we think, is a good consideration for the promise of the defendant, without going into the inquiry as to what might have been the ultimate result of those proceedings.
The objection that the plaintiff did not show a discharge of the trustees, or a release of the attachment of the logs, can not avail the defendant here, as, under the charge of the court, the jury must have found the fact that the plaintiff did discharge both the property and the trustees, according to the terms of the agreement.
The case further shows, that on the writ in favor of L. & A. ACross against Brown, the plaintiff had caused to be attached one hundred and fifteen mill logs, subject to two prior attachments, one [647]*647in favor of fee Vermont Bank, and one in favor of one Reed; that on fee 15fe day of January, 1852, these'one hundred and fifteen logs were sold at sheriff’s sale, on executions issued on judgments rendered in the suits in favor of. the Bank and Reed, and were then bid off by the defendant. On the same day, the defendant entered into the contract declared on in this case, agreeing, in consideration that the plaintiff would discontinue his suit against the trustees, and release the logs from the attachment thereon, that he, the defendant, would pay the plaintiff one hundred dollars, in part payment of the plaintiff’s debt against Brown, on which the suit was brought. This contract, being a verbal one, is claimed by the defendant to be void, as being within the statute of frauds. In determining this question, I shall not'attempt to reconcile the various conflicting decisions, under statutes substantially like our ownj that have been made in this country, and in England, on the question of what class of contracts do, and what do not, come within the provisions of that statute. Able jurists have pronounced it impossible, and the lawyer who carefully studies these decisions, will find the conviction forced upon him, that the peculiar circumstances of the particular case under consideration often have had more to do with the decision than the plain and obvious meaning of the language of the statute, and the whole current of the decis-' ions taken together furnish a good practical illustration of the idea, that it is not wise in courts to attempt to warp a statute by construction, to meet the supposed equities of a given case. This question has been before our courts in repeated instances, and the rules to be deduced from the decisions in 'this state, we think, are judicious and sound, and not difficult of application. (The doctrine that when there is a sufficient consideration to sustain the promise to pay the debt of another, that will take the case out of the statute, has not been adopted in this state.
The practical operation of such a rule, as remarked by Chief Justice Redfield, in Lampson v. Hobart’s Estate, 28 Vt. 697, would “ virtually repeal the statute.” The promise must not only be based on a valuable consideration, but it must be a eonsidei’ation moving between the promissor and promissee, and from which the promissor is to derive some actual or anticipated benefit, in view of which the promise is made. When this is the case, it becomes a [648]*648new and independent contract, existing entirely between the parties to it, and with which the original debtor has no other connection or interest, except that he may be benefited by its performance. It is then a promise to pay the debt of another person, not collateral to the debt, or for the benefit of that other person, but in view and in consideration of the benefit to be derived by the promissor therefrom. In such a case, the existing relations between the original debtor and creditor need not necessarily be changed, or the debt cancelled, or in any manner affected by such promise; whether they are, or not, must depend upon the terms of the new contract, but in either event, it can make no difference with the operation of the statute. But in cases where the consideration for the promise affects only the original debtor or creditor, and the promissor derives no advantage from it, then it is necessary that the original debt should be affected, so as to change, or discharge, the liabilitv of the original debtor, j If the contract is such that it substantially transfers the debt to the promissor, either by its terms, or in its legal operation, then it comes within the foregoing rule of a consideration operating to the advantage of the promissor, and is not within the statute.
If its effect is to discharge the original liability, then it is not a promise to pay the debt of another, but it is a promise, by which the debt of another is in fact paid. All the authorities agree that such a case does not come within the statute.
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The opinion of the court was delivered by
Pierpoint, J.
The first question raised by the defendant upon the exceptions in this case, is, that there is a fatal variance b 'tween the allegations in the declaration, and the proof given upon the trial.
It is alleged in the declaration, that the plaintiff had instituted a suit in his name against one Brown, and had caused a large lot of mill logs to be attached thereon, as the property of Brown, and had caused Jairus Rood and Daniel Hinkson to be summoned as Brown’s trustees. Up-on the trial, it appeared from the evidence that the suit was brought in the names of the plaintiff and A. A. Cross, who had formerly been co-partners, but that at the time the suit was commenced, the plaintiff was the sole owner of the debt.
[646]*646The court instructed the jury that if the plaintiff was the real owner of the debt sued in the name of L. & A. A. Cross, there was no variance that was fatal to the declaration, and we think that* in so doing, the county court was entirely correct. The plaintiff, in setting out the proceedings in which the attachment was made, and the persons summoned as trustees, was not required to set them out with the particularity that would have been necessary in setting out proceedings on which the declaration was founded. The plaintiff, in this case, was simply laying the foundation for an allegation of the consideration on which the contract was made, to enforce which this action is brought. It was not necessary that he should have set out the name of the party in whose favor the suit was brought, and, in this case, if the words “ in his name ” were stricken out, the declaration would be perfectly good. All that it was necessary for the plaintiff to allege, was, that property had been attached, and was held, and that certain persons had been trusteed on a legal process issued on a debt due to him, and which he had the right to control, and this would be necessary, only for the purpose of showing that he had the right to enter into the contract set forth, and the power to perform it on his part.
The defendant further claims that the trustees could not legally have been made chargeable in that proceeding, if it had been continued. Whether this is so or not, is a question that we think can not be inquired into in this case. The plaintiff had summoned them as trustees of Brown, and claimed the right to make them chargeable. This claim he abandoned, and discharged the trustees in consideration of the promise on the part of the defendant, and this, we think, is a good consideration for the promise of the defendant, without going into the inquiry as to what might have been the ultimate result of those proceedings.
The objection that the plaintiff did not show a discharge of the trustees, or a release of the attachment of the logs, can not avail the defendant here, as, under the charge of the court, the jury must have found the fact that the plaintiff did discharge both the property and the trustees, according to the terms of the agreement.
The case further shows, that on the writ in favor of L. & A. ACross against Brown, the plaintiff had caused to be attached one hundred and fifteen mill logs, subject to two prior attachments, one [647]*647in favor of fee Vermont Bank, and one in favor of one Reed; that on fee 15fe day of January, 1852, these'one hundred and fifteen logs were sold at sheriff’s sale, on executions issued on judgments rendered in the suits in favor of. the Bank and Reed, and were then bid off by the defendant. On the same day, the defendant entered into the contract declared on in this case, agreeing, in consideration that the plaintiff would discontinue his suit against the trustees, and release the logs from the attachment thereon, that he, the defendant, would pay the plaintiff one hundred dollars, in part payment of the plaintiff’s debt against Brown, on which the suit was brought. This contract, being a verbal one, is claimed by the defendant to be void, as being within the statute of frauds. In determining this question, I shall not'attempt to reconcile the various conflicting decisions, under statutes substantially like our ownj that have been made in this country, and in England, on the question of what class of contracts do, and what do not, come within the provisions of that statute. Able jurists have pronounced it impossible, and the lawyer who carefully studies these decisions, will find the conviction forced upon him, that the peculiar circumstances of the particular case under consideration often have had more to do with the decision than the plain and obvious meaning of the language of the statute, and the whole current of the decis-' ions taken together furnish a good practical illustration of the idea, that it is not wise in courts to attempt to warp a statute by construction, to meet the supposed equities of a given case. This question has been before our courts in repeated instances, and the rules to be deduced from the decisions in 'this state, we think, are judicious and sound, and not difficult of application. (The doctrine that when there is a sufficient consideration to sustain the promise to pay the debt of another, that will take the case out of the statute, has not been adopted in this state.
The practical operation of such a rule, as remarked by Chief Justice Redfield, in Lampson v. Hobart’s Estate, 28 Vt. 697, would “ virtually repeal the statute.” The promise must not only be based on a valuable consideration, but it must be a eonsidei’ation moving between the promissor and promissee, and from which the promissor is to derive some actual or anticipated benefit, in view of which the promise is made. When this is the case, it becomes a [648]*648new and independent contract, existing entirely between the parties to it, and with which the original debtor has no other connection or interest, except that he may be benefited by its performance. It is then a promise to pay the debt of another person, not collateral to the debt, or for the benefit of that other person, but in view and in consideration of the benefit to be derived by the promissor therefrom. In such a case, the existing relations between the original debtor and creditor need not necessarily be changed, or the debt cancelled, or in any manner affected by such promise; whether they are, or not, must depend upon the terms of the new contract, but in either event, it can make no difference with the operation of the statute. But in cases where the consideration for the promise affects only the original debtor or creditor, and the promissor derives no advantage from it, then it is necessary that the original debt should be affected, so as to change, or discharge, the liabilitv of the original debtor, j If the contract is such that it substantially transfers the debt to the promissor, either by its terms, or in its legal operation, then it comes within the foregoing rule of a consideration operating to the advantage of the promissor, and is not within the statute.
If its effect is to discharge the original liability, then it is not a promise to pay the debt of another, but it is a promise, by which the debt of another is in fact paid. All the authorities agree that such a case does not come within the statute.
It is apparent that unless the statute is to be judicially repealed, the consideration for the promise must be of a peculiar character, for if the promise is without consideration, it is void at common law; if it is a promise to pay the debt of another, no action can be maintained upon it under the statute, unless it is in writing; if then it is taken out of the statute, it must be by force of the peculiar nature of the consideration on which it is based. That'consideration must be not only sufficient to support the promise, but of such a nature as to take the promise out of the statute; and that requisite, we think, is to be found in the fact that it operates to the advantage of the promissor, and places him under a pecuniary obligation to the promissee, entirely independent of the original debt; which obligation is agreed to be discharged by paying that debt. The contract may be of such a character that the payment will impose no legal [649]*649or moral obligation on the original debtor to repay the money; indeed, the consideration may move from the original debtor himself. These views, we think, are in accordance with the principles involved in French v. Thompson’s Estate, 6 Vt. 54; Anderson v. Davis, 9 Vt. 136; Sinclair v. Richardson, 12 Vt. 33; Wait v. Wait, 28 Vt. 350; and Lampson v. Hobart’s Estate, id. 697.
In the case under consideration, the discharge of the trustees, and the release of the property from attachment, was a sufficient con ideration to support the promise. Was it then of such a character as to take the contract out of the operations of the statute?
We think it is appai ent from the fact set forth in the bill of exceptions,. that this contract was entered into prior to the sale of the logs on the executions. It is stated to have been made on the same day, and to suppose it to have been made after the sale, would be to suppose that the parties made a contract, as to these logs, which both of them knew to be an idle ceremony. The object of the defendant in making this promise, evidently, was to remove the claim of the plaintiff upon these logs, and upon the trustees, that he might become the purchaser of the logs, without competition on the part of the plaintiff, and that Rood and Hinkson should be released from the embarrassment of the trustee process, so that they might continue to operate the mill. The advantage to be derived by the defendant from this arrangement, was the true consideration of his promise. The original debtor was no party to it, but the contract was entirely independent of him, and upon a consideration wholly disconnected from his debt. The fact that he is to derive a benefit from the performance, of the contract, does not bring it within the statute. The contract must stand on the same ground as though it was for the payment of one hundred dollars absolutely, without any reference to its application on the debt of Brown.
The result is, the judgment of the county court is affirmed.