1816. BADDELEY v.. legal grounds. If a woman improvidently promise to marry a man, who turns out upon inquiry to be of bad character, she is not bound to perform her MORTLOCK promise. But she must shew that the plaintiff is and Wife. a man of bad character. The accusation is not enough. The facts charged were capable of proof. The existence of the rumour is not sufficient to discharge her from her promise. Without proof that the charges were founded, she is not absolved from her contract. But it affects the damages. Verdict for plaintiff, damages one shilling. Lens, and Copley, serjeants, and W. P. Taunton, for plaintiff. Best, and Vaughan, serjeants, and Adams, for the defendants. [Attorney, Baddeley.] Where in an action for breach of promise of marriage, the defendant relies upon the general bad character of the plaintiff, a witness may be examined as to the representations made to him by third persons Foulkes v. Selway, 3 Esp. per Kenyon, C. J. Brutal or violent conduct, as threats of ill usage, afford a legal excuse for breaking off an engagement.. Leeds V. Cooke et ux. 4 Esp. 256. per Ellenborough, C. J. And as to circumstances which justify a non-performance, see Pothier Traité du Contrat de Marriage, part 2. chap. 1. art. 7. SITTINGS AFTER HILARY TERM, 56 GEO. HI. AT WESTMINSTER. 1816. MORRIS v. STACEY. February 15. A., an agent for some ma. and receives SSUMPSIT against the defendant for the price of some shoes. The circumstances nufacturers, sells to B., were these. The defendant acted as an agent, who likewise and had ordered some shoes from the plaintiff, acted as an who was concerned for country manufacturers. tity of shoes,. The price of the shoes amounted to 9137. The certain bills of defendant proposed to give bills for the shoes, payment. B. drawn by one Wallis on Bromley, and indorsed to indorse by R. Burns. The plaintiff pressed him to dorse the bills; but he told him that he would exchange in being pressed in- them, refuses, but writes a not letter to A., in indorse them, but would give him a letter of gua which he in closes the bills, and adds, honoured when due, he rantee, which would do as well. The letter was "that should in these terms: December 24th.-I herewith they -“ not be hand your drafts drawn by Mr. Wallis and accepted by Mr. Bromley, and indorsed by R. Burns: should the bills not be honoured when due, I mise to see that they do so."-Signed by the fendant. and Held, that this pro was a sufficient agreement de within the 4th section of the stat. of frauds, to bind B. to pay for the fault of his Lens, and Best, serjeants, for the defendant, goods, in deobjected, that there was no consideration. Wain principal. and Warlters, 5 East, 10. From the words of the letter it is evident that the goods were actually de 1816. MORRIS v. livered at the time of the guarantee. Egerton . Mathews, 6 East, 307. From both these cases it appears, that the whole agreement must be in STACEY. writing. Städt and Lill may be cited, 9 East, 348; but there the consideration was included in the terms of the guarantee. If it had appeared that something was to be done subsequent to the signing the paper, it would have been sufficient, and within the case of Stadt and Lill. But here, every thing had been done before the agreement was signed. the GIBBS, C. J.-It is sufficient. It appears on face of the letter, that, in consideration that the plaintiff would take the notes, the defendant would indemnify him. The consideration, therefore, is apparent. I do not think it necessary in this case to over-rule the decision in Wain v. Warlters; I consider this undertaking binding, notwithstanding that case. Vaughan, serjeant, and Reader, for plaintiff. Lens, and Best, serjeants, for defendant. [Attornies, Ellison and W. -Riley.] The statute of Frauds 29 Car. 2. c. 3. s. 4. avoids any "special promise to answer for the debt of another, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith." In Wain v. Warlters, 5 East, 10., the Court of K. B. determined, that by the word agreement must be understood the consideration for the pro mise, as well as the promise ftself. And therefore, where one promised in writing to pay the debt of a third person without stating on what consideration, it was holden, that parol evidence of the consideration was inadmissible; and, consequently, such promise ap pearing to be without consideration on the face of the written instrument, it was nudum pactum, and gave no cause of action. The decision in this case has given rise to much discussion and serious doubts. It is ar gued on the one side, that the word agreement is strictly a legal term, importing the consent or contract of two or more parties, for a thing done, or to be done, and either expressing, or directly implying, the consideration for the promise made by the party who is to be charged by the contract. The clause of the act says, "that the promise shall be void, unless the agreement, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged, &c." It is main tained, therefore, that the word agreement must here be taken in its legal sense; that is to say, not as a promise, which is the act but of one party, and therefore no contract, but as the express mind of both; the one doing, or una dertaking to do, (or having done) some act on his part, for which the other binds himself by an equivalent. The person to be charged for the debt of another is to be charged upon his special promise in writing; but, without a legal consideration to sustain it, such promise would be nudum pactum. The statute never meant to enforce any promise which was before invalid, merely because it was put in writing. The statute was drawn up by one of the most eminent of our Judges; one who fully understood the value of legal precision, and one who, in the use of a legal term, could scarcely have intended it in its vague and popular sense. It was a natural conclusion, therefore, that by agreement he intended a legal agreement, and that the act was passed by the Legislature in that sense. That the object of the act was twofold; in the first place, to guard against the wide temptation to fraud and perjury afforded in the facility of obliging solvent persons, by mere parol evidence of their promises, to pay the debts of others; and, secondly, as there was always a strong presump tion, both in law and reason, 1816. MORRIS v. STACEY: 1816. MORRIS v. STACEY. against such parties having taken upon themselves the debts of others; so this presumption should be met by the strong proof of the actual writing of the party, and thus, that the party himself should be secured against surprise by the formalities of a deliberate act. That these purposes would be ill accomplished by requiring evidence only of the writing of the promise, separated from the consideration upon which such promise was grounded. The promise and the consideration were in fact one thing-a whole-an agreement. And how many cases might occur in which the promise was conditional and contingent; in which the equity of the promise, therefore, required the performance of the previous condition, and in which the conscience and justice of the case demanded the same proof; that is to say, proof of the same kind and degree of the performance of the condition, and of the obligation of the promise. But how was this equality given, if, whilst the promise was proved by the mere evidence of the handwriting, the performance of the consideration, or previous condition, was to be proved by parol evidence. To these arguments it may perhaps be replied, that the object of the act certainly was twofold: that of guarding against the facility of fraud and perjury by shutting out parol evidence of contracts for others: and, secondly, that of protecting such parties against surprise, by requiring the formalities of the act of writing. But is not the act of writing the promise sufficient for both these objects? Is not the act of writing, being an act of deliberation, a sufficient legal presumption of an equivalent consideration; and is it necessary to equity or law for the statute to protect a party, who not loosely and orally, but by deliberate intention, and by writing, obliges himself to some act or service, The requiring the promise to be in writing accomplishes both purposes of the act. The promise, that is to say, the obligation of the third party, is thus exempted from being proved by any parol evidence. And the third party himself is equally guarded against surprise by being afforded the deliberation and interval of the act of writing. There is nothing in natural equity opposed to a nudum pactum. It is required only to be proved by stronger evidence, in order to meet, not its illegality, but its greater |