Page images
PDF
EPUB

improbability. A person has a right to give and grant simply and absolutely, and therefore, with or without a consideration. It is consequently no objection to this construction of the act to say, that it would give efficacy to a nudum pactum; to a promise without a consideration, or at least an apparent consideration. If a party so deliberately express his purpose, the law will either infer that such was his purpose, or that a sufficient consideration exists, though it may not ap pear. The protection of the statute is in requiring the act of writing to substantiate the obligation. If this writing be produced, the act, having accomplished its purpose, requires no further testimony, and thereby the wide field for frauds and perjuries is closed. The act was passed to prevent those frauds and perjuries, and therefore required that the promise, upon which the reliance was had, should thereafter be produced in writing. The word agreement, as is known to every one, is a term, in common parlance, synonymous with promise, undertaking, engagement, &c. This is the word in the statute, and why might not the Legislature adopt and use it in its popular sense? Where any term of an

equivocal sense is contrary to the spirit of the act, or insufficient for it, it may be allowable to choose the more consistent meaning; but where the act is accomplished without it, this practice is dangerous.

It seems indeed to be totally a mistake of the nature of the obligation to require a consideration to appear in express writing with the promise. The promise itself, being an obligation to pay the debt of another, and accompanied, as it must be in its nature, by the forbearance of the creditor, includes a consideration in itself. The first and original consideration, upon which the equity of the debt is founded, has already passed, before the intervention of the surety; and the conscience of the debt, as relating to the surety, is sufficiently implied, 1st, in the deliberate act of the surety, taking it upon himself; and, 2d, in the implication, as contained in the very nature of the contract, that he has not done it without sufficient benefit to the debtor.

It is evident that the deci sion in Wain v. Warlters, turned upon the technical im port of the word agreement; for in a subsequent case, Egerton v. Mathews, 6 East, 307, which arose upon the 17th

[merged small][merged small][ocr errors][merged small]

1816.

MORRIS

v.

STACEY.

section of the statute of Frauds, the Court of K. B. came to a different conclusion. It was determined in that case, that a memorandum signed by the defendants, whereby they agreed to give so much for goods, took the case out of the 17th section of the statute, though the memorandum was not signed by the seller; nor did it express any consideration for the defendant's promise, otherwise than by infer ence from their own obligation. It is worthy of remark, that the words used in the 17th section are, "note or memo, randum in writing of the bargain, to be signed by the parties to be charged by such contract." In ex parte Minet, 14 Vesey, jun. 189, the Lord Chancellor (Eldon) expressed serious doubts of the propriety of the decision in Wain v. Warlters. "There is a variety of cases," says his Lordship,

directly contradicting the case in the Court of King's Bench; which is a most important case with reference to the consequences. For the under, taking of one man, for the debt of another, does not require a consideration moving between them." In a subsequent case, ex parte Gardom,

[ocr errors]

15 Vesey, jun. 286, his Lord. ship decided against the rule in Wain v. Warlters; holding, that a guarantee in writing to pay the debt of another, was sufficient without stating any consideration as between the creditor and the surety. His Lordship observed, "Until the case of Wain v. Warlters was cited, some time ago, I had always taken the law to be clear, that if a man agreed in writing to pay the debt of another, it was not necessary that the consideration should appear upon the face of the writing. That case has determined two points; first, that a consideration is necessary; secondly, that it must appear upon the writing."

It has been determined, however, that a guarantee in writing to pay for any goods which the vendor delivers to a third person is good, within the 4th section of the statute of Frauds, as containing a sufficient description of the consideration of the promise, (name, ly, the delivery of the goods when made) as of the promise itself. Stadt v. Lill, 9 East, 348. See likewise the case of Lyon v. Lamb, Fell. on Merc, Guarantees, 228. Phillips Bateman, 16 East, 370,

1816.

TH

SHEW and Another v. THOMSON.

A trader directs his ser◄

vant "that if any one should was at dinner or engaged in

come whilst he

business, she

should deny

him." Held

that such in

not amount

to a direction

for a general

denial; and

HIS was an action of debt and detinue by the assignees of one Thomson a bankrupt, to recover a sum of money from the defendant, the proceeds of an execution. The execution had been levied subsequent to the alleged act of bankruptcy. The case turned upon the point, whether an act of bankruptcy had been committed. The bankrupt structions did had directed his servant to deny him to his creditors, if any of them should call whilst he was at dinner, or engaged in business. It appeared that therefore, ala creditor of the name of Shew called one evening ditor called in the month of June; the bankrupt saw him, but nied, it was no afterwards reprimanded his servant for introducing act of bankhim, and told her, "that if any one should come whilst he was at dinner or engaged in business, she should deny him." At the time when Shew first called the bankrupt was not at dinner. A few days after Shew called about half past five in the evening. The bankrupt had not then risen up from dinner, and was denied by the servant.

Best, serjeant, for the plaintiffs contended, that it was for the Jury to say, whether this was not a denial to a creditor. Whether the being engaged in business, or at dinner, was not a pretence.

GIBBS, C. J.-Whether this be an act of bankruptcy depends upon the instructions which the servant received from her master. I conceive such

though a cre

ruptcy.

1816.

SHEW and
Another

v.

THOMSON.

instructions not to be a direction for a general denial. It is no act of bankruptcy.

Plaintiffs nonsuited.

Best, serjeant, and Reader, for plaintiff.

Lens, serjeant, and E. Lawes, for defendant.

[Attornies, Wills.

Burgess.]

Garrett v. Moule, 5 T. R.
575. Dudley v. Vaughan, 1
Camp. 271. See likewise
Cooke's Bankrupt Laws, c. 4.

last edition, where the cases on this subject are collected and methodised.

SITTINGS AFTER HILARY TERM, 56 GEO. III.
AT GUILDHALL.

1816.

TH

HINDLE v. BELL and Another.

February 20.

Where a debtor is dis

charged under an Insolvent

Act, his property is vested in the Clerk of

til assignees

HIS was an action against the Sheriff of London for a false return to a writ of fieri facias. In February 1814, a gentleman of the name of O'Brien took the benefit of the Insolvent Debtors' Act, the 54 G. 3. The plaintiff afterwards sued the Peace, unhim, obtained a judgment, and execution was are chosen, issued in Michaelmas term 1815. Mr. O'Brien wards in his then lived in Craven-street, where he had re- although he be sided before his discharge. Goods to the value permitted to of 1,500l. had been seized on the premises; and possession of his property, the sheriff was indemnified for his return of nulla and to act as ostensible bona.

and after

assignees ; and

continue in the

owner, no cre. ditor can take his goods in

execution, and

compel the

a sale. His

act;

sheriff to make remedy is to

When Mr. O'Brien was discharged, no assignment had been made to any one under the but it appeared that his creditors, with the exception of Hindle, suffered him to remain in his house, bution under

An in

and to occupy it with the usual furniture.
ventory of the goods taken under the execution
was produced, together with a schedule, which Mr.
O'Brien exhibited at the time of his discharge, con-
taining an account and valuation of the furniture, a
copy of which had been sent to the plaintiff as a de-
VOL. I.
M

obtain a distri

the act, or, in fraud, to apply discharge set

a case of

to have the

aside.

« PreviousContinue »