| U.S. Circuit Court for the District of District of Columbia | Mar 15, 1806
This cause came on to be heard on the bill, answer, plea, and replication. The only facts on which a decree can be founded are those confessed by the answer to this bill or by the answer to a former bill, which is made an exhibit in the present bill. By the answer of the present defendant to a former bill of the complainants against Mandeville & Jamesson, the defendant “admits that he gave a verbal promise to the complainants to pay them the amount of the goods if Brown should be unable to pay for them,” but relies and insists on the statute of frauds in the same manner as if he had pleaded it. To the present bill the defendant pleads the statute, and then “not waiving his said plea but wholly relying and insisting thereon, says, he believes it may be true that the complainants sold the goods to Brown, and that the defendant verbally promised to pay for them if Brown should be unable;” and denies that he made any other promise; and denies that the goods were sold to himself, &e. And then says, “And this defendant agaiD relying upon the statute to prevent frauds and perjuries, as aforesaid pleaded, to bar the complainants’ demand against him for the supposed undertaking aforesaid, prays to be hence dismissed, -fee.” To this plea and answer there was a general replication and issue.
Ón the part of the complainants it is contended that if the parol agreement to pay the debt of another be confessed by the answer, although it relies on the -statute of frauds, or although the statute be pleaded, yet the court ought to decree a performance of the agreement, because there can be no danger of fraud or perjury, the prevention of which is the sole object and interest of the statute. It is also said that if a man confess in writing that he did make such a parol agreement, although at the time of such confession he insist that the parol agreement imposed no obligation on him, because the statute makes all such agreements void, yet the court ought to decree its performance, because such con-
There is no case, in which a court of equity has enforced such a parol agreement, when the confession was accompanied with a claim of indemnity under the statute. In Cottington v. Fletcher, the plea was considered as superseded by the answer, which did not insist on the statute. It was therefore the case. of an admission of the agreement without claiming the benefit of the statute. The case of Lacon v. Mertins, 3 Atk. 3, has been cited, but the opinion of Lord Chancellor Hardwicke, which is relied on, is only a dictum in a supposed case. He says, “If the bill had been brought by Mrs. Hayes, in her lifetime, and the defendant, Mertins, had admitted the agreement, though he had insisted on not performing it, the court would have decreed it, because the admission takes it out of the statute of fraud and perjuries.” He does not say. though he had insisted on the statute; but on not performing it, which is a different thing; and that he did not mean to say on the statute, is evident from the case which was then before him, in which the defendant confessed ■ the agreement, and “offered to perform it.” The case of Mountacue v. Maxwell, 1 Strange. 236, has also been cited, to prove that a parol promise, acknowledged afterwards in writing, is sufficient to take the case out of the statute. But the point does not appear in the case. The writing relied on, was not an acknowledgment of the parol promise simply, but a new promise in writing, to perform the parol promise, and this is evidently the ground on which the chancellor overruled the plea, and ordered it to stand for an answer. The statute was not insisted on. The opinion of 1 Pow. Cont. p. 291, has also been cited. But that opinion is founded only upon authorities, in which the statute was not insisted upon; and in one of the eases which he cites (Croyston v. Banes, Finch, Prec. 20S), the distinction is expressly taken between the ease where a parol agreement is confessed, without insisting upon the statute, and a confession accompanied by a reliance on the statute. There being, therefore, no case in which such a parol agreement, confessed, has been carried into execution, when the defendant has insisted on the statute, this court will not say that it is not bound to obey the