UNDER THE STATUTE OF FRAUDS.
1.1. At common law, a contract of guaranty or suretyship could be made by parol; but by the Statute of Frauds, 29 Car. II. c. 3, " no action shall be brought whereby to charge the defendant upon any special' promise to answer for the. debt, default, or miscarriage cif another person, . . . unless the agree ment upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or bv some person there unto lawfully authorisea:" so that under the statute all contracts of guaranty and surety ship must be in writing and signed. The words debt and default in the statute refer to contracts, 2 East, 325, per Lord Ellenborough ; and debt includes only pre-existing liabdity, 12 Mass. 297; miscarriage refers to torts. 2 Barnew. & Ald. 613. Torts are accordingly within tbe statute, and may be guarantied against, 2 Barnew. & Ald. 613; 2 Day, Conn. 457; though this is doubted in regard to future torts. 1 Wils. 305. Perhaps a guaranty against future torts might be open to objec tions on the ground of public policy.
, 12. The doctrine that a future contingent liability on the part of the principal is not within the statute, 1 Salk. 27; 12 Mass. 297, ip not tenable; and it is clear, both by analogy and on authority, that such a liability may support a guaranty, although such cases must be confined within yery narrow limits, and the mere fact of the contingency is a very strong presumption that the promise is ori ginal. Browne, Stat. Fr. 4 196; 6 Vt. 666.
Where the promise is made to the debtor, it is not within the statute. 7 Halst. N. J. 188; 2 Den. N. Y. 162; Browne, Stat. Fr. 188, and cases cited. "We are of opinion that the statute applies only to pionnses made to the person to whom another is answerable." 11 Ad. & E. 446; 3 Perr. & D. 282 ; 1 Gray, Mass. 391. The word another in the statute must be understood as referring to a third person, and not to a debt due from either of the con tracting parties. 6 Cush. Mass. 552 ; 7 id. 136;
5, All. Mass. 370. False and deceitful repre sentations of the credit or solvency of third persons are not viithin the statute. Browne, Stat. Fr. N 181-184 ; 3 Term, 51 ; 4 Campb. 1. See, also, 5 Bos. & P. 241; 6 Cow. N. Y. 346; 4 Gray, Mass. 156.
13. In New York, the consideration must be expressed. This was so held before the revision of the statutes, and is now expressly provided by statute. 2 Rev. St. 135 ; 20 N. Y. 331 ; 21 id. 316; 3 Johns. N. Y. 210 ; 24 Wend. N. Y. 35 ; 7 id. 246 ; 29 Barb. N. Y. 486 ; 5 Den. N. Y. 484. The rule is the same in New Hatnpshire. 36 N. H. 73. For the English doctrine, see 5 East, 10.
'But in applying this rule the courts lay hold of any language which implies a considera tion, 21 N. Y. 315: the delivery of goods is presumed without being expressly stated, as where the promise was, "I guaranty the pay ment of any goods which A delivers te B," 9 East, 348 ; or in the case of an offer to become security "for silver put into A's hands for the purpose of manufacturing." 12 Wend. N. Y. 520. So on a promise "to hold A harmless for any indorsement to be made," 4 Den. N. Y. 559, or on a guaranty of payment of drafts to be issued, 3 N. Y. 203, the court infers the consideration. And see 13 N. Y. 232 ; 24 Wend. N. Y. 82; 4 Hill, N. Y. 200; 3 Den. N. Y. 312. So where the guaranty and the matter guarantied are one simultaneous trans action, both will be construed in connection, and the consideration expressed in the latter applied to the support of the former, if there are words of reference in the guaranty. 3 N. Y. 203 ; 10 Wend. N. Y. 209; 11 Johns. N. Y. 221 ; 36 N. H. 73.