To which it was answered by the counsel for the defendant, that upon this declaration, coupled with the facts given in evidence, the plaintiff had a right to recover this 451. for that the declaration expressly charged that Taylor was indebted to the plaintiff, in 457. for three-quarters of a year's rent; and that the defendant undertook to pay it;' which was directly within the words of the statute of frauds, 'a special promise to answer for the debt of another person.' That Leper was in possession of the goods of the tenant, who owed the plaintiff three-quarters rent, and being about to sell them, the landlord came to distrain for this rent in arrear, and Leper promised to pay it, if he would desist from distraining. He promised absolutely to pay it, and not to pay it out of the goods, or with any other restriction. But the Chief Justice, Lord Mansfield, said, that the case had nothing to do with the statute of frauds. The res gesta would entitle the plaintiff to his action against the defendant. The landlord had a legal pledge. He entered to distrain; he had the pledge in his custody. The defendant agreed that the goods should be sold, and the plaintiff paid in the first place. The goods were the fund the question was not between Taylor the tenant, and the plaintiff, the landlord. The plaintiff had a lien upon the goods. Leper was a trustee for all the creditors, *and was obliged to pay the land- * [236] lord, who had the prior lien : this has nothing to do with the statute of frauds. Wilmot and Yates, Justices, were of opinion, that this was an original promise; and Mr. J. Aston said, he looked upon the goods to be the debtor, and that Leper was not bound to pay to the landlord more than the goods sold for.The goods were a fund between both, and on that foot he concurred.

The case of Fish v. Hutchinson,(k) is plainly distinguishable from the case of Williams v. Leper, and Read v. Nash, mentioned above. In which case of Fish v. Hutchinson, the facts were simply these: Vickars was indebted to Fish in a sum of money, and Fish had commenced an action for it; whereupon the defendant promised, that in consideration the plaintiff would stay his action against Vickars, he would pay the money which was owing. Here there was a debt subsisting at the time of the promise, so that the liability of him, on whose behalf it was (*) 2 Wils. 94.

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made, was the moving consideration to the promisor. The liability of the party was so immediately the ground of the promise, that the action could not have been sustained against the promisor, without showing such liability to have been in existence when the promise was made. In Williams v. Leper, it was the promisor's own liability, which was the immediate ground of the promise, and however that liability might be shown to have originated in the tenant's liability primarily to pay the rent, yet the promise, being immediately moved by the defendant's own liability, by reason of his having possession of the goods, whereon the plaintiff's lien had attached, might in that respect be said to be original. The tenant's liability was in fact in a way to be removed by the distress upon the goods, and the object of the promisor, in procuring the fund to be released from the plaintiff's claim, was not for the benefit of the tenant, or intended in any way to prop or sustain his credit. The tenant's liability was sunk in the subsequent proceeding. In *Read v. Nash, the defendant on the first action had not yet become liable; the period had not yet arrived, at which any debt, default, or miscarriage could be imputed to him. If judgment had been given in the first action, ascertaining the damages, a promise by a third person to pay these damages would doubtless have been within the statute; for then a specific liability would have arisen.

The principle of the decision in Williams v. Leper, was recognised, although the case was not cited by name, in Houlditch et al. v. Milne ;(4) a case before before Lord Eldon, Ch. J. at nisi prius. It was an action of assumpsit, for the repair of carriages, the facts in support of which were, that certain carriages belonging to Mr. Copey had been sent by the defendant to the plaintiffs to be repaired, the orders concerning them being given by the defendant. One of the carriages had been bought by Mr. Copey himself, and paid for by him; and the bill, which was the object of the action, contained a charge for repairs done to this carriage, but it was made out in the name of Copey.— When the carriages were repaired, the defendant sent an order to pack them up, and send them on board ship; the plaintiff upon this sent to know who was to pay for them; the defendant said he had sent them, and he would pay for them. The

() 3 Esp. Ni. Pri. Ca. 86.

carriages were afterwards packed up, and sent on board ship, and the bill was made out and delivered to the defendant; he desired time to look over it, and when the plaintiff's clerk called a second time, he said, the charges appeared very high; but desired the clerk to call in a very few days, and he would settle it. Not having done so, the plaintiff's attorney waited upon him, when the defendant said, that he had been told that the bill was a very exorbitant one, and a fit subject to refer. However, he said, he had the money to pay it, though he did not say whether it was his own or Copey's. Upon these facts, it was contended on behalf of the defendant, *that there being no proof of the defendant's having money of Copey's in his hands, to apply to the count in the declaration for money had and received, the plaintiff must be nonsuited, and that it was within the principle of Matson v. Wharam,(m) in which it was decided, that if the person who had the goods was at all liable, the undertaking by another must be in writing. If, therefore, Copey was himself liable to the plaintiff, the present action could not be supported. But the Chief Justice took a ground for his decision which superseded that inquiry. He said, that if a person had obtained possession of goods on which the landlord had a right to distrain for rent, and he promised to pay the rent, though it was clearly the debt of another, yet a note in writing was not necessary; that such a case appeared to apply precisely to the one before him. The plaintiffs had to a certain extent a lien upon the carriages, which they parted with on the defendant's promise to pay. His Lordship was of opinion, that that circumstance took the case out of the statute, and that, consequently, the defendant was liable for the amount of the bill.

The subject of this Third Chapter is now brought to a conclusion; it may be properly closed with observing generally, that any judicial confession by the defendant, saving the necessity of all proof whatsoever, will exclude the application of the statute of frauds. Thus, where a tender(n) is pleaded to a count upon a promise, clearly within the prohibition of the statute, and money is paid into court, as is requisite to be done upon this plea, the defendant has submitted to the action, and shall not be suffered to commit the gross inconsistency of afterwards resort

(m) 2 T. R. 80. (n) Middleton v. Brewer, Peake, Ni. Pr. Ca. 15,

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* [239]

ing to the protection of the statute. And in this respect, the courts of law and equity concur; for though in courts of equity it seems now to be a doctrine nearly established, that a defendant may admit the agreement and plead the statute, yet unless he pleads *the statute, his admission will be taken as a submission and we have seen in the case of Spurrier v. Fitzgerald,(0) thę conclusive effect of this submission upon the pleadings.

(e) 6 Vez. jun. 548.

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CHAPTER IV.

Sections the First, Second, and Third.

All leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, made or created, by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents, thereunto lawfully authorised by writing, shall have the force and effect of leases, or estates, at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect; any consideration for making any such parol leases, or estates, or any former law or usage to the contrary notwithstanding.

2d. Except nevertheless, all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, during such term, shall amount unto two-third parts at the least of the full improved value of the thing demised.

3d. And moreover, that no leases, estates, or interests, either of freehold, or terms of years, or any uncertain interest, not being copyhold, or customary interest, of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, shall be assigned, granted, or surrendered, unless it be by deed, or note, in writing, signed by the party so assigning, granting, or surrendering the same, or their agents, thereunto lawfully authorised by writing, or by act and operation of law.

*PART I.

Parol Demises.

IT will be convenient to include under one consideration the first and second sections of the statute, which will properly constitute the first part of the 4th chapter; and perhaps the subject will be best introduced by considering by what acts or attempts this branch of the statute is transgressed.

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