Page:Notes to Clark on contracts (IA notestoclarkonco00graviala).pdf/14

7. ings of another, to the intent or purpose that such other may obtain thereby credit, money or goods; or to charge any person upon a promise made after full age to pay a debt contracted during infancy; unless such promise, representation or ratification, or some note or memorandum thereof, be in writing, and signed by the party to be charged thereby or his agent." (The English Infants' Relief Act, of 1874, has not been adopted in the United States. See Anson on Contracts, p. 108.) By Code Virginia, Sec. 2922, a new promise in writing, or an acknowledgment in writing from which a promise to pay may be implied, is required in order to remove the bar of the Statute of Limitations as to money due on an award or by contract.
8. What is such a promise "to answer for the debt of another" as is required to be in writing signed, by Sec. 4 of the Statute of Frauds? Clark, 66-72. Several requisites must concur: (1) The promise must be made to the creditor. A promise to the debtor to pay his debt for him is not within the statute; and so, if on valuable consideration, is binding though made verbally. (See Eastwood v. Kenyan, 11 Ad. & E. 438.) The reason why a promise to save another harmless from the consequences of his acts (Indemnity, Clark, 70), does not require writing is that such promise is made to him who is to become liable (the quasi debtor), and not to him to whom the liability will be incurred (the quasi creditor). In the latter case, writing is required. (2). The promise must be to pay a debt as guarantor for which another person is primarily liable. (Clark, 67.) Thus in Hendricks v. Robinson, 56 Miss. 694 (S. C. 31 Am. Rep. 382), the promise of Dulaney to pay Robinson for the goods supplied Hendricks, did not require to be in writing as Hendricks was never liable at all, the credit being given entirely and solely to Dulaney, though they were delivered by his order to Hendricks. And the subsequent promise by Hendricks to pay for the goods did require to be in writing; for it was to answer for the debt of another (that of Dulaney), and besides it was void for lack of consideration, the only consideration being moral, if indeed there was even a moral obligation on Hendricks to pay under the circumstances. (3). The principal liability, while it may be prospective, must be real, i e., it must