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290 290 HARVARD LAW REVIEW. THE LAW SCHOOL. LECTURE NOTES. [These notes were taken by students from lectures delivered as part of the regular course of instruction in the School. They represent, therefore, no carefully formulated statements of doctrine, but only such informal expressions of opinion as are usually put forward in the class-room. For the form of these notes the lecturers are not responsible.] Suretyship. — Statute of Frauds. — Promises Made on a New Consideration. — From Professor LangdelVs Lectures. — The class of cases like Williams v. Leper ^ 3 Burr. 1886, in which A, a creditor of B, gives up a lien or other security in exchange for C's promise to pay the debt of B, have brought much confusion into the subject of suretyship. For example, when the consideration thus given by A inures to C's benefit, the rule has sometimes been laid down (as in New York, in Leonard v. Vreden- burgh, 8 Johns. 29) that C's promise is taken out of the Statute of Frauds, section 4, as a matter of law ; and even when the consideration inures to B's benefit the view has been put forward (see the dissenting opinion in Mal- lory V. Gillett, 21 N. Y. 412) that the mere fact of the plaintiffs giving up a security takes the case out of the statute. The principles, however, which govern the case are in reality simple. It was perfectly possible for C to make a promise of suretyship, i.e., to incur an obligation collateral to B's ; the sole question is whether he intended to do so. He may have meant to make a collateral promise, or he may have meant to assume B's debt and to become himself the principal debtor, in which latter case his promise, not being one of suretyship, would not properly be within the Statute of Frauds. (It is true that it is not legally possible, in spite of the dictum of Buller, J., in Tatlock v. Harris^ 3 T. R. p. 180, for C to step into B's shoes and assume his debt but such may none the less be his intention.) This question of intention is one of fact, belonging to the jury, and not, as Lord Eldon seems to have thought in Houlditch v. Milne, 3 Esp. 86, to the court. It is in this aspect only, as bearing on C's intention, that the inquiry to whose benefit the consideration inured becomes material. When a promise is made to pay the debt of another and to pay it as his debt, the intention to make a collateral promise may naturally be inferred unless there is evidence to the contrary. Such evidence may be found in the fact that the consideration inures to the promisor's benefit ; but it is by no means conclusive, and must be considered in connection with all the other circumstances of the case. That it is not conclusive is shown by the promise of a guaranty company, which, though made upon a new consideration inuring to the benefit of the company, is manifestly a promise of suretyship. Where the consideration inures to B's benefit it is not clear why the mere fact that a security is given up should tend to show that C's promise is not one of suretyship. Some right must be relinquished by A in order to constitute a consideration for the promise; and there seems to be no special significance in the fact that the right is a lien or other security. If the security, e.g.^ goods distrained by A as landlord, should be given by A to C as his bailiff to sell and to pay the plaintiffs claim out of the proceeds, the Statute of Frauds would obviously not apply; but such a transaction is very different from an