Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-04-11
NUMBER 10.


following authorities: Addison on Ccnsrscs.. CSC 10
70l; Story on Contracts sec % 10 ios P.r.or, en-
Consracu, zoe-zs9 (toP) and note .. Metcsisa N
! SnaWr lamp z; Bently VI. Grin s Taunt ESQ:
Leggatt vs.. Heed, Q. ?. Is. and Taylor w. Brit
ton, reported 10 the note 70 tna laus r.re7 49,.
Stammers VI. Macomb, 2 Hend 4S4: No.Sez "a ~,
gsrte, Hill, So. Car. s3S; Sheldon w. Pendleion
| l8 Conn., AZ, and especially Stammers vs Nscornb
and Taylor vs.. Brittou.
Now, in visw Of these principles, ~ appleasls 70
the facts of this case we think the instrucfio1 Of
his Honor the Circuit Judge, to the jury are e-ro-
neous, because he entirely oyerthrows the disfinc-
ton between engagements made on the credit Of tie
husband and with the intention Of looking 70 hsn
for their performance-treating the wife bis
agent-and contracts made with tie wife solely on
ner credit that Of hsr separate estate and with
no intention Of holding the husband bound. That
We DO not misapprehend the charge ia this respect
we think Is sufficiently apparent IRON the body Of
Eout rendered more certain by the instrnctfons
refused By the Court
Inc jury were further instruoted-tiat II Judge
S41Fon promised the plaintiffs II they would causo
suS cork C, 70 be measured snd valued By Hughes
-. German ~ ne would pay for il, and in considers
1on VI mat promise they did cause il 70 be meas-
oree ana valued By these men, such promise though
no1 N xrlung and though made after the commence
men. on the suit would operate as an adoption Of
IS .s ot mrs Catron from the beginning and
would maintain the present action
This instruction we also think erron.o,. - -.
cause sucn promise-when sought "a Be directly
enforced Dy distinct suit under pieadinns propsr-
ly adapted TO it-could not, perhaps Be mairtaiuea
anu e1eeuteo-e9t because the only use that eould
be made of IL in the present suit was a e,,;s ,.d
ing to show original authority from Jud1s Cafror
to his wife to bind him in these contracts Gnrh a
promise could not, perSe, Operass retrosoeetiveiv-
in any other way--se a. % affect this action. kus
to be available There being no anterior Hahiiif N
the part Of the plaintiff in error) muat be The sub
ject ofa distinct suithccompanied with proper aver
ments. The efect given 20 it in Ais acii0n bT tha
Circuit Judge was entirely too great It should
have been left as proof for the consideration Of the
jury to shed light upon the nature Of the original
dealings betweenArs. Cstron and the defendants in
error.
Wehave already intimated that such promise al
the one supposed in the charge Of his Honor might
be valid. Its laid down in Story in CoRtracs (sse
45l) thats promise to pay the bond Of third per-
son, If the oblgse viii 90 before magistrate and
make oath that it was rightly read 90 the Sbigor
oeforehe executed it is binding because the travail Of
coming before the Mayor is very good eonsidera-
non. 80, also, promise to pay certain sum Of
money, on condition that the plaintiff call for il at
particular time, is bindings because the condition i
an inconvenience to the plaintiff To the same ef
feet Is Brooks vs.. Ball, Is Johns r. $685. Then Is
to the slscieaey Of tie consideration for such pro-
mise there can be no doubts and the only question
that can arise is, whether such promise s to be in
writing under the statute of frauds; and this We
need not, and do not now consider "a the action
here is not based on this promise. From what i
said In Brooks Ball, il would seem II this were
the debt Of third person-not that Of the wes-fhs
promise must be in writing. But here there i no
liability the wife, because Of her eoverture whsn
the contracts were made, and this Is 30 sven If the
credit WAS solely given % the Wifs. And We 10 not
see how the promise Of the husband, in such case.
is to be regarded a collateral engagement ia the
case Of an infant-not liable by reAson Of is minor
ity It has been held that the undertaking Or pro-
mise Of another for him is not collateral but an
original engagement Harris vs.. Huntback, ! Bur
row, 81: Addison on contracts, los. And II the
wife were liable, or this was the debt Of third
party 1t is difficult % fnotvihstaudinR what u
said in Brooks Vs. Bali, how the premise i within
the terms Of the statute. The aere fact fhaf the
promise to pay debt due from Z third psrsJ does
not create original liability sncs Il is perfectly
conpetent for aman % assume, sufhcient coHsid>
eraticn, 70 pay the debt Of another. Thus, . pro-
mise by A. to B. to pay debt due from B. 70 c. "a
not promise 70 pay the debt Of another within the
statute Of frauds. Ard an uncoDditionaI primary
liability may be assumed directly 70 1s gsdiiOr.
Story on contracts, sec SOL. Bat already stated,
we do not finally dispose Of this question.
Whether Judge Cafron made such psou1iss or
contract and intended thereby to create upon him
self . liability which did not before exist; or
whether on the admsasuremsBt of this work a7d
the attempt to have what wa5 due upon Il settled,
he acted merely the agent ef his wife, or for him
self as the party originally liable. questions -
be decided upon the circumstances Of the esss, and
Is matter Of evidence.
The judgment Of the Circuit Court must - re-
versed and new trial had when the jury wll be
instructed to consider Of the case upon the pvinci
pie Of this opinion WEGKr.
A correct copy: J. p CLARK, Clerk