2. A wager as to the sex of a third person (q); or whether an unmarried woman would have a child (r) by a certain day; are illegal; as unnecessarily leading to painful and indecent investigations.

It seems that a wager between two coach proprietors, whether, or not, a particular person would go by one of their coaches, and no other, is illegal, as exposing that person to inconvenience and importunity (s).

A wager as to the circumstances or solvency of a third person, is certainly so far objectionable, that the judge might refuse to try the cause, either in the exercise of his own discretion, or upon the application of the third party, whose interest might be affected by the inquiry. But if the cause be tried, and the plaintiff recover a verdict, it seems, that neither can a writ of error be brought, or the judgment arrested, upon the ground that such a wager is necessarily illegal (t). In Thornton v. Thackray, it appeared that A. paid B. 7500l., in consideration that B. should pay A. 10,000l., or such proportion of that amount, say 10,000Z., as C. paid his legal general creditors. After verdict, the Court would not arrest the judgment; and they held that the declaration which alleged that C. had paid his legal general creditors 10,0007., for the purpose of shewing that A. had won the wager, was warranted by the construction of the wager.

It is necessary to declare specially for money won on a wager; an indebitatus count not being sustainable (u).

Wagers, or bets, on parties gaming; and on horse races; and wagering policies; and the right to rescind certain wagers and recover deposits paid thereon, will be hereafter considered.

(q) De Costa v. Jones, Cowp. 729. In this case, the judgment was arrested, on the ground that the wager was per se illegal.

(r) Ditchburn v. Goldsmith, 4 Camp. 152. This was a wager whether Joanna Southcot, a pretended prophetess, and who affected to be pregnant, would have a male child. Gibbs, C. J., stopped the trial, on its appearing she was unmarried, and said it was not

material that she courted the inquiry.

(s) Eltham v. Kingsman, 1 B. & Ald. 683. It was not necessary to decide the question in this case.

(t) Thornton v. Thackray, 2 Y. & J. 156; see id., 163; Robinson v. Mears, 6 D. & R. 26.

(u) Jackson v. Colegrave, Carth. 338; Bovey v. Castlemain, 1 Lord Raym. 69; 2 Chitty Pl. 5th ed. 226,c., 233, a.

7thly. OF GUARANTEES AND INDEMNITIES (r).

1. Of the general Nature of a Contract to guarantee or become Surety; and of a Contract of Indemnity.

2. How Guarantees are affected by the Statute of Frauds.

1. When the Enactment applies.

2. Of the Form, &c. of the Memorandum. 3. Of the Extent of the Surety's Liability.

4. When discharged therefrom, by Conduct of the Creditor inconsistent with a Contract to

guarantee.

1. The general character or nature of a contract to guarantee, or become responsible for the debt or act of another person, is sufficiently simple. It is a collateral engagement for another, as distinguished from an original and direct agreement for the party's own act. It is of the essence of this contract that there should be a principal debtor; and the party agreeing to become responsible for him, incurs no obligation as surety, if no valid claim against the principal ever arises: and his liability as surety upon a tenable demand against the principal ceases when such demand is extinguished.

But the rule that a party cannot be liable upon a contract of guarantee, unless the principal has incurred a legal responsibility, is true, in some instances, in form or words, rather than in substance. In the case of a guarantee to answer for the price of goods to be supplied to a married woman, or goods, (not necessaries,) to be sold to an infant, or other persons incompetent to contract, no doubt the party guaranteering, though professedly contracting, only in the character of a surety, would be responsible. He could not object the incompetency of the (supposed) principal; or he might, by construction of law, be treated as the principal. For the same reasons, a person who, without autho

(x) The law of principal and surety is ably elucidated in the treatises of Mr. Fell and Mr. Theobald; see also 3 Chitty Com. Law, Index, tit. Guarantee. The soundest principles upon

this subject are to be found in Pothier on Obligations. This branch of the law of contracts seems to be imperfectly developed in the French Civil Code.

rity, contracts as agent for another person, may be viewed as the principal and absolute debtor (y).

We have already observed, that although a contract be in writing, a consideration is necessary to give it validity (~). Consequently, in the case of a guarantee, which must be in writing, it is essential that there be a sufficient consideration for the party's promise to be answerable for the debt or default of the third person. A promise to pay a debt already incurred by another, is not binding without some new consideration, as forbearance, &c. But it seems, that if A. verbally request B. to credit another person, for goods, &c., and he do so, the benefit to the latter, thus conferred at the instance of B., is sufficient to support a written promise by him to be responsible (a). And it was observed by Best, C. J., in a late case (b), that "no court of common law has ever said that there should be a consideration directly between the persons giving and receiving the guarantee. It is enough if the person for whom the guarantor becomes surety, receives a benefit or the person to whom the guarantee is given, suffer inconvenience, as an inducement to the surety to become guarantee for the principal debtor.”

It has been remarked, that there must in general be a mutuality of obligation, in order to give effect to a contract executory on both sides (c). In the case of a guarantee, it is not essential, as regards the surety, that the creditor should bind himself to supply goods, &c., for which, if furnished, the surety is to be answerable collaterally. But it is necessary that the guarantee be accepted— there must be a mutual assent that it shall have operation-a mere offer to guarantee is not binding, unless duly accepted (d).

It seems that the contract of a surety is subject to the ordinary rules in regard to the construction of contracts (e).

Indemnities. In many instances the law implies a promise of indemnity. Thus, in the case of landlord and tenant, there is, it seems, an implied promise by the landlord to the tenant, that no distress shall be made by the superior landlord for the rent due to him; at least, whilst the tenant in possession pays his rent to

(y) Ante, 183, 184.

(2) Ante, 4, 5.

(a) Ante, 45. As to the consideration of forbearance, &c., see ante, 30 to 32.

(b) Morley v. Boothby, 3 Bing. 113; and see ante, 25, 26, 46.

(c) Ante, 13.

(d) Ante, 10, 13, 59.
(e) Ante, 79.

his immediate landlord (ƒ). If a person be employed to do an act not manifestly, and in itself unlawful, in assertion of a right assumed by the employer, as to distrain, sell goods, &c., there is a tacit promise by the latter, to the party acting as agent, &c., that he shall be protected or indemnified against the consequences of doing the act required, and which the employer has apparently the right to execute or cause to be performed (g). If A. became surety or bail (h) for B., at his request, there is an implied promise to indemnify him. And there is, even at law, an implied contract between sureties to contribute equally in discharging the demands for which they become responsible for their principal (i). But a surety who defends an action brought to recover monies due from the principal, cannot recover contribution from his cosurety, for the costs of the action, unless authorised by him to defend (k),

In Fletcher v. Harcourt (1), the declaration stated, that whereas the defendant had arrested one Batersby by a commission of rebellion, issuing out of the Court of the Lord President and council of the North, as he affirmed; and that the plaintiff kept a common inn at Otely, and had kept it for the space of five years, and had entertained men. That the defendant requested the plaintiff to keep the said Batersby in his inn at Otely by the space of one night, as a prisoner, and that he would keep and save him harmless; and averred that he had kept him for that night as a prisoner. That Batersby afterward brought an action of false imprisomnent against him for the said keeping of him in his house, and that he had expended and laid out in defence thereof, ten pounds; and that he had required him to save him harmless, and he refused. On non-assumpsit, verdict for the plaintiff'; and it was moved by Harvey, in arrest of judgment, that

(f) See 2 Chitty Pl. 5th ed. 313; Woodf. by Harrison, 503.

(g) See per Lord Kenyon, in Merryweather v. Nixon, 8 T. R. 186; Adamson v. Jervis, 12 Moore, 241, 251, 252; per Best, C. J., 4 Bing. 66, S. C.; see, however, Farebrother v. Ansley, 1 Camp. 343; Wilson v. Milner, 2 id., 452.

(h) See the precedent, and notes, Chitty Pl. 5th ed. 319. But for loss of time and trouble in taking a journey

to become bail, Reason v. Wirdnam, 1 C.& P. 434; or the costs of uselessly defending an action against the bail, no action lies by the bail against the principal; Fisher v. Fallows, 5 Esp. R. 171.

(i) See post, Money Paid.

(k) Id. Knight v. Hughes, M. & M. 247; 3 C. & P. 467, S. C.

(1) Hutton R. 55; Winch. 48, S. C.; Bull, N. P. 146, a.

it is no sufficient consideration, because it doth not appear, that he had lawfully arrested the said Batersby, for it is not affirmatively alleged. "The Lord Hobart seemed at first to doubt if it did not appear that it was a lawful arrest, then there was no consideration; but because the diversity, when the consideration appears to be for doing of a thing which is unlawful; as if one at the request of J. S., promised to better (Query beat,) J. D., and he promised to save him harmless; this is a void consideration. But if one request J. S. to enter into the Manor of Dale and drive out cattle, and that he will save him harmless, if he doth so; and after trespass be brought against him and recovery had, he shall have his action. So, if a sheriff pretending to have a writ where he hath none, arrest one, and request an innkeeper to entertain him in his house, or hire one to conduct the prisoner to the gaol, and promise to keep him without damage, if an action be brought, and recovery had thereupon, the party shall have an action of the case against the sheriff upon this promise; for he which doth a thing which may be lawful, and the illegality thereof appear not to him, he which employs the party, and assumes to save him harmless, shall be charged. And judgment was entered for the plaintiff."

But the general rule is, that if two persons jointly commit a tort, and the injured party recover damages against them, and one pay the demand, there is no implied promise by the codefendant to contribute his share. And, in Merryweather v. Nixon (m), in which this doctrine was recognised and acted upon; and where the damages had been recovered in the former suit for an injury done by the present plaintiff and defendant to a reversionary estate of a third person, in certain premises; Lord Kenyon said he had never before heard of such an action for contribution having been brought where the former recovery was a tort: that the distinction was clear between this case, and that of a joint judgment against several in an action of assumpsit, and that the decision would not affect cases of indemnity, where one man employed another to do acts not unlawful in themselves, for the purpose of asserting a right.

In the case of an accommodation acceptance, or indorsement, there is an implied engagement on the part of the person request

(m) 8 T. R. 186. And see Adamson v. Jarvis, 12 Moore, 251, 252, per Best,

C. J.; Farebrother v. Ansley, 1 Camp. 343, 345; Wilson v. Milner, 2 id., 452.