By the Court,
Cbawfoed, J.
This case comes before us by a writ of error, from the County Court of Walworth county, where a judgment was rendered in favor of the defendant in error.
In the trial below it was shown that one George W. Emerick, (son of the plaintiff in error,) was indebted to the defendant in error, Henry Sanders, upon two promissory notes, one of which was for the sum of forty dollars and the other for six dollars and thirty-four cents, and that these notes became due in 1850 ; that George W. Emerick had left property in the hands of his mother, (the plaintiff in error,) to pay his debts, and had thereupon left the country; that Mrs. Emerick knew of her son’s indebtedness to Sanders, and had said “that it was an honest debt and should be paid that “ he had left plenty of property in her hands to pay the debts that Mrs. Emerick told Ottman, a witness in the case, that she had said to the plaintiff, Sanders, “ she was to pay this debt for George W. Emerick, for he had made arrangements with her for that purpose,” and that “she owed the plaintiff, Sanders, for a horse, or horses, which her son, George W. Emerick, bought [92]*92of plaintiff, because George W. Emerick had left property with her to pay this debt.”
We have not referred to all the evidence given, ~ 7 but have only directed attention to those particular parts which would seem to establish a liability against the defendant.
Upon the trial below, the defendant by her counsel, asked the court to instruct and charge the jury as follows:
“ 1st. If the jury believe, from the evidence, that George W. Emerick left personal property with defendant, as trustee, to pay his debts, any promise made by her to pay plaintiff’s debts against George W. Emerick, not being in writing, is void.
“ 2d. If the debt of plaintiff still existed at the time the promise of Mrs. Emerick was made, (if the jury find a promise was made,) and she was a mere trustee of George W. Emerick, the promise should have been reduced to writing, although upon á sufficient consideration.”
We do not deem it necessary to examine the other instructions given, or those refused in the case.
The only question presented by this record is, whether the promise of Mrs. Emerick comes within the provisions of Sec. 2 of Chap. '76 of the Revised Statutes, which requires that a promise, to answer for the debt of another person, shall be in writing.
This section of our Statute is substantially the same as Sec. 4 of the English Statute of Erauds. 29 Car. 2, Chap. 3 ; the application of which has called forth so many adjudications in the English and American courts, that it would be a useless task to review them. It may be admitted, however, that these cases are, by no means, reconcilable, and that in some of them there is a direct conflict.
[93]*93"Where a debt exists, payable by one person t o another, and a third party agrees with the creditor to pay him this debt, so due to him, such an agreement or promise is within the Statute, and must be in writing.
The term 'agreement, it is said, necessarily implies a consideration, (Wain vs. Marlton, 5 East. 10) and even if the Statute did not, in express terms, require that the consideration should appear in the writing yet in order to the validity of this promise or agreement, to pay the debt of a third party, it must be for a consideration esteemed good in law.
The principal question to be determined in cases of this kind, is, whether the promise or agreement is to answer for the debt, default or miscarriage of another; and this depends on whether the promise can be deemed original or independent of the former liability, or whether it is collateral thereto.
The leading case in England, is Bickmyer vs. Darnell (1 Salkeld 27), where A became liable for B, that he would safely deliver a horse, which the latter obtained from the plaintiff, and this was held to be a collateral undertaking for another, which, to be valid, must be in writing. This distinction between an original and a collateral promise has been preserved throughout the subsequent cases; but the difficulty has been found in determining what shall or shall not be an original undertaking.
We will refer to a few of the cases in which the subject has occupied the attention, and called forth the ingenuity of some of the best and most learned judges.
In the case of Williams vs. Leper, (3 Burr, 1886,) one Taylor, who was the tenant of the plaintiff, and in arrear for rent, made an assignment of his effects, [94]*94^01’ benefit of Ms creditors; the defendant, Leper, was employed as a broker, to make sale of the effects, and on the morning of the sale, the plaintiff was about , 0 ? x to distrain the goods for the rent, when the defendant promised the plaintiff to pay the arrears, if the plaintiff 'mould desist from disdaining, and he did desist.
It was held that this promise was “ not a collateral promise to pay the debt of another.” So also in Crofts vs. Smallwood, (Esp. N. P. C. 121,) where the plaintiff was applied to by the defendant, to let one Poster have some clothing, saying if he would do so, he (the defendant) would pay. Chief Justice Eyre held that the promise was not within the statute.
In Read vs. Nash, (1 Wils. 305,) plaintiff’s testator, brought an action against one Johnson, and the defendant promised if the plaintiff would withd/raw the record, he, the defendant, would pay him fifty pounds, and this promise was held to be an original undertaking, and not for the debt of another ; as Johnson was not a debto^% “there might have been a verdict for him.” The case of Fish vs. Hutchinson, (2 Wils. 94,) was not unlike the preceding case, but is nevertheless quite distinguishable from it. It was this. The plaintiff sued one Vickers, in assumpsit, for a sum of money 'which he owed to the plaintiff, and the defendant, in consideration that the plaintiff would stay his action against Vickers, promised to pay the amount owing by Vickers. The whole court held that it was within the Statute, because “ here was a debt of another still subsisting, and a promise to pay it.” It must be obvious that this case is entirely irreconcilable with the case of Williams vs. Leper, (above cited,) where the inducement or consideration for the promise of the defendant was the desisting from a [95]*95distraint for rent, leaving the liability for the rent still subsisting. And yet these two cases were decided in the Court of Common Pleas, within a few years of ' " each other.
In Anderson vs. Hayman, (1 H. Black, 120,) the defendant desired the plaintiff to supply his (the defendant’s) son with goods, and said: “ Use my son well, charge Mm as low as possible, and I will be bound for the payment of the money, as far as ¿6800 or £1000.” This was said to a clerk or agent of the plaintiff, who wrote to the plaintiff as follows : “ Mr-Hayman says his son will call on you and leave orders, and he has promised me to see you paid if it amounts to £1000.” The son was charged on the plaintiff’s books. The court were clear that this case was within the Statute, and that the father’s promise was void, not being in writing.
To the same effect is
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By the Court,
Cbawfoed, J.
This case comes before us by a writ of error, from the County Court of Walworth county, where a judgment was rendered in favor of the defendant in error.
In the trial below it was shown that one George W. Emerick, (son of the plaintiff in error,) was indebted to the defendant in error, Henry Sanders, upon two promissory notes, one of which was for the sum of forty dollars and the other for six dollars and thirty-four cents, and that these notes became due in 1850 ; that George W. Emerick had left property in the hands of his mother, (the plaintiff in error,) to pay his debts, and had thereupon left the country; that Mrs. Emerick knew of her son’s indebtedness to Sanders, and had said “that it was an honest debt and should be paid that “ he had left plenty of property in her hands to pay the debts that Mrs. Emerick told Ottman, a witness in the case, that she had said to the plaintiff, Sanders, “ she was to pay this debt for George W. Emerick, for he had made arrangements with her for that purpose,” and that “she owed the plaintiff, Sanders, for a horse, or horses, which her son, George W. Emerick, bought [92]*92of plaintiff, because George W. Emerick had left property with her to pay this debt.”
We have not referred to all the evidence given, ~ 7 but have only directed attention to those particular parts which would seem to establish a liability against the defendant.
Upon the trial below, the defendant by her counsel, asked the court to instruct and charge the jury as follows:
“ 1st. If the jury believe, from the evidence, that George W. Emerick left personal property with defendant, as trustee, to pay his debts, any promise made by her to pay plaintiff’s debts against George W. Emerick, not being in writing, is void.
“ 2d. If the debt of plaintiff still existed at the time the promise of Mrs. Emerick was made, (if the jury find a promise was made,) and she was a mere trustee of George W. Emerick, the promise should have been reduced to writing, although upon á sufficient consideration.”
We do not deem it necessary to examine the other instructions given, or those refused in the case.
The only question presented by this record is, whether the promise of Mrs. Emerick comes within the provisions of Sec. 2 of Chap. '76 of the Revised Statutes, which requires that a promise, to answer for the debt of another person, shall be in writing.
This section of our Statute is substantially the same as Sec. 4 of the English Statute of Erauds. 29 Car. 2, Chap. 3 ; the application of which has called forth so many adjudications in the English and American courts, that it would be a useless task to review them. It may be admitted, however, that these cases are, by no means, reconcilable, and that in some of them there is a direct conflict.
[93]*93"Where a debt exists, payable by one person t o another, and a third party agrees with the creditor to pay him this debt, so due to him, such an agreement or promise is within the Statute, and must be in writing.
The term 'agreement, it is said, necessarily implies a consideration, (Wain vs. Marlton, 5 East. 10) and even if the Statute did not, in express terms, require that the consideration should appear in the writing yet in order to the validity of this promise or agreement, to pay the debt of a third party, it must be for a consideration esteemed good in law.
The principal question to be determined in cases of this kind, is, whether the promise or agreement is to answer for the debt, default or miscarriage of another; and this depends on whether the promise can be deemed original or independent of the former liability, or whether it is collateral thereto.
The leading case in England, is Bickmyer vs. Darnell (1 Salkeld 27), where A became liable for B, that he would safely deliver a horse, which the latter obtained from the plaintiff, and this was held to be a collateral undertaking for another, which, to be valid, must be in writing. This distinction between an original and a collateral promise has been preserved throughout the subsequent cases; but the difficulty has been found in determining what shall or shall not be an original undertaking.
We will refer to a few of the cases in which the subject has occupied the attention, and called forth the ingenuity of some of the best and most learned judges.
In the case of Williams vs. Leper, (3 Burr, 1886,) one Taylor, who was the tenant of the plaintiff, and in arrear for rent, made an assignment of his effects, [94]*94^01’ benefit of Ms creditors; the defendant, Leper, was employed as a broker, to make sale of the effects, and on the morning of the sale, the plaintiff was about , 0 ? x to distrain the goods for the rent, when the defendant promised the plaintiff to pay the arrears, if the plaintiff 'mould desist from disdaining, and he did desist.
It was held that this promise was “ not a collateral promise to pay the debt of another.” So also in Crofts vs. Smallwood, (Esp. N. P. C. 121,) where the plaintiff was applied to by the defendant, to let one Poster have some clothing, saying if he would do so, he (the defendant) would pay. Chief Justice Eyre held that the promise was not within the statute.
In Read vs. Nash, (1 Wils. 305,) plaintiff’s testator, brought an action against one Johnson, and the defendant promised if the plaintiff would withd/raw the record, he, the defendant, would pay him fifty pounds, and this promise was held to be an original undertaking, and not for the debt of another ; as Johnson was not a debto^% “there might have been a verdict for him.” The case of Fish vs. Hutchinson, (2 Wils. 94,) was not unlike the preceding case, but is nevertheless quite distinguishable from it. It was this. The plaintiff sued one Vickers, in assumpsit, for a sum of money 'which he owed to the plaintiff, and the defendant, in consideration that the plaintiff would stay his action against Vickers, promised to pay the amount owing by Vickers. The whole court held that it was within the Statute, because “ here was a debt of another still subsisting, and a promise to pay it.” It must be obvious that this case is entirely irreconcilable with the case of Williams vs. Leper, (above cited,) where the inducement or consideration for the promise of the defendant was the desisting from a [95]*95distraint for rent, leaving the liability for the rent still subsisting. And yet these two cases were decided in the Court of Common Pleas, within a few years of ' " each other.
In Anderson vs. Hayman, (1 H. Black, 120,) the defendant desired the plaintiff to supply his (the defendant’s) son with goods, and said: “ Use my son well, charge Mm as low as possible, and I will be bound for the payment of the money, as far as ¿6800 or £1000.” This was said to a clerk or agent of the plaintiff, who wrote to the plaintiff as follows : “ Mr-Hayman says his son will call on you and leave orders, and he has promised me to see you paid if it amounts to £1000.” The son was charged on the plaintiff’s books. The court were clear that this case was within the Statute, and that the father’s promise was void, not being in writing.
To the same effect is Matson vs. Wharam, (2 T. R. 80,) where it was held that if the original debtor remained at all liable, the promise or contract must be in writing. Price vs. Bastón, (4 Barn, and Adol. 433,) was this: William Price agreed with the de-fendant to work for him, for certain wages, which he did, and in consideration that he, William, would allow his wages to remain in his (the defendant’s) hands, the latter undertook to pay the plaintiff £13, which William Price had previously owed to him. The court held that there was no consideration for the promise, moving from the plaintiff to the defendant, nor any privity between them; and judgment was given for the defendant.
In the case in hand, a debt existed from George W-Emerick, to the plaintiff, Sanders, which remained unpaid when he left the country, and an agreement or [96]*96promise to pay that debt by any otter person than George W. Emerick, must of necessity come within the words of the statute. If, for instance, it he found in this case, that when G. W. Emerick went away, he left in his mother’s hands a quantity of chattels, she would he a depository or bailee for him, or she might have bought them and promised to pay him for them, but in neither of these cases could Sanders insist that she was liable to him, for in such case we take it, no implied assumpsit can be urged. Now, if Mrs. Eme-rick, after she had bought the goods, and had received them, should meet with Mr. Sanders, and without any doubt as to language or intention, should promise him to pay her son’s debt to him, it is absurd to say that this would not be a “promise to pay the debt of another person,” for here there is no indebtedness of her’s to Sanders; as far as this transaction is concerned she does stand indebted, but it is to G. W. Emerick, and therewith Sanders has no privity.
We grant that if all three had consented to an arrangement by which the original debt of G. W. Em-erick should be cancelled, and Mrs. Emerick should, in consideration thereof, promise to pay the plaintiff, or if’ by a like arrangement, Mrs. Emerick, in a part payment of her indebtedness to her son, and with his consent promised to the plaintiff to pay him the amount of his debt; in either of these cases, the promise would be a valid original one, having the essential ingredient, a consideration, and need not be in writing, because in either of these cases, G. W. Emer-ick’s debt had ceased. But, whether the transaction was a bailment or a sale, it gave rise to a liability of some kind, from Mrs. Emerick to her son, with which Sanders had no connection whatever, and any subse[97]*97quent arrangement or promise by ber to Sanders without the concurrence of George W. Emerick, must, we think, be deemed collateral and within the intent and meaning of the statute. We admit, that if a subsequent promise or undertaking were made with Sanders, whereby he would have extended the time of payment of G. W. Emerick’s indebtedness, or done any other thing of advantage to the defendant, or which would take from Sanders, some right or privilege, in view of some of the cases, it would- be deemed an independent promise for a good consideration, and therefore valid, though not in writing. Such was the case of Farley vs. Cleveland, (4 Cowen, 432,) where Chief Justice Savage held that a promise “ founded upon a new and original consideration of benefit to the defendant or harm to the plaintiff, moving to the party making the promise either from the plaintiff or the original debtor,” was not within the Statute. To the same effect is Ellwood vs. Monk, (5 Wend. 235;) Slingerland vs. Morse, (7 John, 463;) Mercein vs. Mack, (10 Wend. 461;) and many other cases in New York. In this class of cases it will be observed the liability of the original debtor is not at all impaired or taken away, but there are many cases in New York, Massachusetts and other States, in which it has been held that to take the subsequent promise out of the statute, the original liability must be extinguished, (vide Simpson vs. Patten, 4 John. 422; Jackson vs. Raymer, 12 John. 291; Sarson & Sanders vs. Wyman, 14 Wend. 246; Rogers vs. Kneeland, 13 Wend. 114; Watson vs. Randall, 20 Wend. 201; Stone vs. Symmes, 18 Pick. 467; Loomis vs. Newhall, 15 Pick. 166; Sinclair vs. Richardson, 12 Verm. 33; 9 id. 136. In the [98]*98case of Curtis vs. Brown, et al.. (5 Cush. 488,) Chief Justice Shaw says : “ When, by the new Prom^se ^he old debt is extinguished, the promise is not within the statute ; it is not then the promise to pay the debt of another which has accrued, but it is an original contract on good consideration, and need not be in writing. But where the original debt still subsists, and where the plaintiff has relinquished no interest or advantage which has enured to the benefit of the defendant, it is not an original contract, but a contract to pay another’s debt, and must be in writing.”
In the argument of the counsel for the defendant in error, our attention has been called to many cases, some of which require notice, inasmuch as we are specially invoked to an examination of them as conclusive authorities in this case. Wyman vs. Smith, (2 Sandf. Sup. Ct. R., 331,) was an action of assump-sit to recover a sum of money due to the plaintiff by the brother of the defendant. The defendant received the money from his brother, to pay the indebtedness, as he was proved to have admitted, but whether the remittances from his brother were for that purpose or not, was made an issue in the case, and submitted to the jury, who found a verdict for the plaintiff, and the Superior Court say : “ The defendant contends that this is a promise to pay the debt of a third person, and that not being in writing, it is void. We regard it not as a promise to pay the debt of a third person, but as a promise to pay money, which the defendant had received for the use of the plaintiff, and therefore binding.”
The principle upon which the Court proceeded in this case, may be gathered from the conclusion of the [99]*99opinion. “ On the whole, we conclude that where a debtor remits money to a third person, with a direction to pay it to a creditor, and the latter, npon being: . r J r o informed ox it, calls npon the remittee, who then positively promises to pay such money to the creditor, it is a valid promise. From and after such promise, the relations of the parties are changed. The remit-tee ceases to be the mere agent of the remitter, liable to have the fund withdrawn from his hands by the countermand of the latter. Thenceforth he is the depository of the creditor’s money, holding it for his use, and liable to him for it.” Now, if it be true, as a matter of law, that the defendant, in the case just cited, upon promising to pay the plaintiff' ceased to be “liable to have the fund withdrawn from his hands,” by the original debtor, or in other words, if the latter thereupon was deprived of all control over his money so remitted, and that too, by virtue of a contract or promise, to which the creditor was a party, it seems to us that his original liability must be thereby extinguished, and in that case, the defendant’s promise could well be esteemed an original, independent one, within the case of Jackson vs. Raymer.
But our impression is, that Wyman vs. Smith, falls properly within the principle of Farley vs. Cleveland, and but adds another to that class of cases. In Lippincott and others vs. Ashfield, (4 Sand. 611,) the defendant in consideration that plaintiffs should forbear and give time of payment to Clussman & Co., (the original debtors) on the note for twelve months, “ promised to sell certain property, and to pay, and also promised, or guaranteed, that the property in his hands, belonging to Clussman &■ Co., should sell [100]*100^01’ enough to pay the plaintiff’s claim. The for-bearanoe in this case brought it within the cases of Farley vs. Cleveland and Williams vs. Leper, and ” # 7 indeed the judge who delivered the opinion, holds, that this forbearance was a sufficient consideration. But the reasoning by which he takes the case out of the statute, is not at all satisfactory to us. The plain, palpable intention of this statute is, that whenever a debt is payable by one person to another, no third party shall be held liable for such debt, unless his promise to be so liable shall “be in writing” and be founded upon a valid consideration. This is one of the provisions of a statute which, it is said, was first enacted to prevent frauds and perjuries, by requiring a different species of evidence from the mere oral statements of witnesses in certain cases, which it was thought gave too much opportunity for the practice of fraud and the committing of perjury, in setting up and swearing to matters, where it was, in many instances, impossible to show the contrary, and yet the construction given to this statute, in some of the cases which are. cited above, in our view, entirely destroys its intention and effect.
So long as the original debt remains due, and payable by the debtor to his creditor, any arrangements whatever, by which another party promises to pay that debt, is within the very letter of the statute, and it matters not from what source the consideration for this latter promise flows, it is none the less an agreement to pay the debt of another ; but if by the terms of this latter agreement the former liability is taken away or destroyed, there is then no ■ “ debt of another” remaining, and the subsequent or latter1 promise cannot be said to be for that which has no [101]*101existence. But even where the first or original debt continues, the statute does not say that another promise for the same debt may not be made by a stranger, to the original transaction ; it only requires that this subsequent promise shall be (like all other valid contracts) for a good consideration and in addition thereto shall be in writing, subscribed by the pro-missor.
In the opinion given by Chief Justice Kent, in the case of Leonard vs. Vredenburgh, (8 John. 29,) he points out three classses of cases, namely : 1. “ Cases in which the guaranty or promise is collateral to the principal contract, but is made at the same time and becomes an essential ground of the credit given to the principal or direct debtor.” 2. “ Cases in which the collateral undertaking is subsequent to the creation of the debt, and was not the inducement to it, though the subsisting liability is the ground of the promise, without any distinct and unconnected inducement. Here must be some farther consideration shown, having an immediate respect to such liability, for the consideration for the original debt will not attach to this subsequent promiseand 3. “ A third class of cases to which I have already alluded, is, when the promise to pay the. debt of another, arises out of some new and original consideration of benefit or harm movvng between the neioly contracting parties. The two first classes of cases cure loithin the Statute of Fraudsbut the last is not. This is a clear and comprehensive classification, but why the third class should be deemed not within the statute, we can think of no sound reason. The only distinction between any of these classes relates to the consideration for the promise, but admitting the consider-[102]*102a^lon be valid, the statute is not satisfied until the contract he reduced to writing. We think, with all ¿eference that the third class of the learned Chief . . Justice, is as much within the statute, as either the first or second class.
But even if our view in this respect be incorrect, still there is nothing shown in the evidence in this case, which can place it among cases in the third class above defined. Mrs. Emerick received no benefit moving from the plaintiff, nor did the latter suffer any harm, moving from her. Their relative positions were entirely distinct, he being the creditor of George W. Emerick, and she standing in the relation of bailee or debtor of the latter, so that if the defendant can be said to have made any promise, it was a collateral one, “subsequent to the creation of the original debt;” and although the giving of the property m trust, or the sale of it, to the defendant, by her son, should be deemed a good consideration for this promise; yet in this respect, we hold in accordance with the opinion of Chief Justice Kent, that it must be in writing, to be valid. This conclusion is not at variance- with some of the views of Chief Justice Whitman, in Hilton vs. Dinsmore, (21 Maine R. 410,) in passing upon the case; but it seems to us that when he speaks of the promise of the defendant in that case being grounded upon the consideration of funds placed in his hands by the original debtor, “ as well as upon an agreement on the part of the plaintiff to forbear to sue,” he discloses an element not tobe found in the case before us, which brings Hilton vs. Dinsmore exactly within the third class of C. J. Kent, because the forbearance to sue is. properly [103]*103a ha/rm or deprivation “ moving between the newly contracting parties.”
The various adjudications wbicb have been made ° ( 4 upon this subject, and the conflict of opinions which may be found in them, render it somewhat difficult to arrive atan entirely satisfactory result; but from the examination we have given to the matter, we conclude that the object of the statute will be best carried out by requiring all agreements to pay the still subsisting debt of another, to be evidenced by writing, unless such subsequent agreement or promise be founded upon a new and independent consideration, passing between the newly contracting parties, and independent of the original contract.
This view of the matter leads us to the conclusion that the court below erred in refusing to give the instructions asked by the defendant’s counsel.
The judgment of the County Court is therefore reversed., and the cause remanded for a new trial.