Page:Notes to Clark on contracts (IA notestoclarkonco00graviala).pdf/15

8. be incurred at some time. Thus in Mountstephen v. Lakeman L. R. 7 H. L. 17, a contractor (the plaintiff) offered to make a side-drain into the main sewer for the defendant if he or the town would be responsible. The defendant said: "Make it and I will see you paid." The town had never authorized the construction of the side-drain, and it refused to assume the liability. It was held that the defendant was liable, without writing, as principal debtor, the words, "I will see you paid" imposing a primary liability on himself. But it was said that even if the defendant's promise had been collateral (e. g., if the town won't pay you, I will," etc.), still no writing would have been required. The town was never responsible, but only himself. So that his promise could not be to answer for the debt of another within the meaning of the Statute of Frauds. Clark, 67. (4). The liability of the original debtor must continue. Thus in Goodman v. Chase, 1 B. & Ald. 297, the defendant promised the creditor to pay the debt if the creditor would release the debtor from prison, where he was confined for the debt under a writ of ca. sa. (now abolished). The law was that such release of a debtor operated ipso facto to discharge the debtor from his debt. Thus the release of the debtor extinguished his debt and left the defendant alone liable as principal and not for the debt of another. So the defendant was held liable on his promise without writing. Clark, 68.
   In addition to the above, it has been held in some cases that where the promise to pay the debt of another arises out of some new and original consideration, it is not within the Statute of Frauds. See Smith on Contracts (7th Ed.) 112; Hopkins v. Richardson, 9 Gratt. 494; Wright v. Smith, 81 Va. 777. For an examination of this doctrine, see Harriman on Contracts, 197, where various distinctions are suggested. The doctrine is repudiated in England; and see Noyes v. Humphries, 11 Gratt. 636, at p. 645, per Allen, P.
   For the doctrine where "the leading object of the promisor is not to become guarantor or surety for the debtor, but to subserve some purpose of his own," see Clark, 71.
9. When is an agreement "not to be performed within the space of one year from the making thereof"? Clark, 77-82