We contend that the Plaintiffs ought to recover nothing on this Bond, because according to the original Agreement it is paid.1 The Case was this. The Plaintiffs about 15 years ago conveyed to one Tower, a Tract of Land, containing with such and such Boundaries, 30 Acres. And the present Defendants became jointly bound with the Grantee for the Money, which was £750, for which they gave 8 or 10 Bonds, one of which was to be paid off every Year. But at the Time of these Transactions, a suspicion arose, that the Land included within the mentioned Bounds, did not contain so much as 30 Acres, which induced the Defendants to insist upon and the Plaintiffs to enter into an Agreement which they committed to Writing, that the Land should be surveyed, and if it fell short of 30 Acres, the Deficiency should be deducted out of these Bonds. Accordingly an Admeasurement was made, and the Land fell short 7 Acres and 1/2, which in Proportion to the Price of the whole amounted to about the Value of this Bond. With regard to the other Bonds some of them were put in suit, others were paid off and taken up, at length all of them were taken up, but this, and the Reason why this was never taken up was this. The Plaintiff Hollis who had kept all the Bonds in his own Hands never would come to a final settlement with them. The Grantee had made several Payments, and Tower had made several more and Hayden had made several others. Some of these Payments were minuted on the Bonds, but many of them were made abroad upon Hollis Promise to enter them on the Bonds when he went home which was never done, so that these People being Brothers to Hollis and confiding in his Honor have been let led on Blindfold, in midnight Darkness, till they have already paid 12 or 1500 Pounds for 750, and when all is done they have no Land. For by some Accident the Deed of this Land is lost, of which Hollis got scent some way or other and has since conveyed away this very Land to another Man. This very land is now mortgaged to Mr. Goldthwait.2

The Case of Chambers vs. Bowles was this. Capt. Chambers had sold to one Anthony Lopez a Spaniard of Monto Christo, a Quantity of Merchandizes. Lopez called for the Goods, but when he came to count his Money he found it fell short, 60 Dollars. Chambers, who had no other Dealings with Lopez and was unacquainted with his Circumstances, refused to trust him for the 60 Dollars, and accordingly took back Merchandizes, to that Value. Upon this Captn. Bowles, who was well acquainted with the Spaniard, and knew him to be rich, spoke a few Words to him in Spanish and then turning to Captn. Chambers, said, let Lopez have the goods and I will pay you the Dollars; call upon me tomorrow or any time and Ile pay you the Money.

Mr. Otis said this fell within the Province Law to prevent frauds and Perjuries “that no Action shall be brought whereby to charge the Defendant upon any Special Promise to answer for the Debt, Default or Miscarriages of another Person, unless the Agreement 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,” &c. This is, says he, an Agreement to answer for the Debt or Default or Miscarriage of Lopez. The Contract and sale was from Chambers to the Spaniard, not from Chambers to Bowles. No Discrimination was made between the Merchandizes sold to Lopez and these sold to Bowles, but Bowles says let Lopez have the Goods according to your Contract and I will see you paid if he dont.

Thatcher. This is not a conditional Undertaking for Another, but an absolute Undertaking for himself.

I remember a Case in Salkeld precisely parrallel which is this. “A and B go into a Warehouse together and A says to the Merchant, deliver B such and such Merchandizes, and if he dont pay you I will. This Promise is void by the Act of Parliament from which our Province Law was copied. But if A says Let B have such and such Goods and I will be your Pay master, or I will see you paid, or I will be answerable to you, in this Case A’s promise is good, is an absolute Undertaking for himself not a conditional Undertaking for Another, and A shall be answerable.—Just so in the Case at Bar. Captn. Bowles says, Let the Spaniard have the Goods and I will pay you, call tomorrow or any time at my Lodgings and I will pay you. Here is an Absolute Undertaking for himself, not a Conditional Undertaking in Case Lopez failed, for We never sold these Goods to Lopez, we have no Demand vs. Lopez for them, we refused to sell them to him: We sold them to Bowles, he sold them to Lopez; He only can demand pay of Lopez and we can demand pay only of him; and we expect your Verdict accordingly.— 148This was like Fairbanks v. Brown. There Brown Undertook for the Govt., that the Carter should have such a Price. I will ensure You such a Price. I promise you such a Price, &c.

The Jury gave a Verdict for Chambers in this Case.