17 Tenn. 436 | Tenn. | 1836
delivered the opinion of the court.
The demurrer and the motion in arrest of judgment for the' reasons filed in the circuit court, raise two questions, which have been very fully discussed.
1st. Does the declaration state a consideration sufficient in law to sustain the collateral undertaking therein set forth? and 2nd. can an action in the form of that which has been brought,' an action of debt, be maintained upon a promise to pay contingently, the debt of another, upon such a collateral undertaking-of guaranty, as that which is stated in the declarations. As to’ the first question it is enough, perhaps, to mention briefly, that tve deem the consideration sufficient, and so stated, particuly in the second count, as to give effect and obligation to the undertaking in the declaration described. But 2nd. We think that the written undertaking in the declaration described is not such as will maintain the action in the form in which it has been brought. This has been established by numerous authorities-in England. See the cases cited at the bar. 1 Saunders Rep. 211, (note 2.) 1 Salk Rep. 23, 1 Burrow 373: 2 Wil. Rep. 141: 1 Bacons Abr. 141: 1 Chitty Plead. 116, 129. Comyn Dig. debt B. Fell on Guaranties 188. In that country, the position is not questioned, that neither debt nor indeb-itatus assumpsit will lie against a guarantor upon his collateral undertaking to pay the debt of another, but a special action of assumpsit is the proper remedy. However little may be said as to the grounds or reasons of this doctrine, the doctrine itself is universally admitted and maintained. It is from the courts of that country as the founders and expounders of the common law, that wo have adopted all the forms of our actions,