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1816.

MORRIS

Stacey:

improbability. A person has equivocal sense is contrary to a right to give and grant simply the spirit of the act, or insufand absolutely, and therefore, ficient for it, it may be allowwith or without a considera- able to choose the more contion. It is consequently no ob- sistent meaning; but where the jection to this construction of act is accomplished without it, the act to say, that it would give this practice is dangerous. efficacy to a nudum pactum ; to It seems indeed to be totally a promise without a considera. a mistake of the nature of the tion, or at least an apparent obligation to require a consi- . consideration. If a party so deration to appear in express deliberately express his pur. writing with the promise. The pose, the law will either infer promise itself, being an obli. that such was his purpose, or gation to pay the debt of ano. that a sufficient consideration ther, and accompanied, as it exists, though it may not ap. must be in its nature, by the pear. The protection of the forbearance of the creditor, statute is in requiring the act includes a consideration in of writing to substantiate the

itself. The first and original obligation. If this writing be consideration, upon which the produced, the act, having ac- equity of the debt is founded, complished its purpose, re- has already passed, before the quires no further testimony, intervention of the surety; and and thereby the wide field for the conscience of the debt, as frauds and perjuries is closed. relating to the surety, is suffiThe act was passed to prevent ciently implied, 1st, in the those frauds and perjuries, and deliberate act of the surety, therefore required that the taking it upon himself; and, promise, upon which the re- 2d, in the implication, as conliance was had, should there. tained in the very nature of after be produced in writing the contract, that he has not The word agreement, as is

done it without sufficient be. known to every one, is a term, nefit to the debtor. in common parlance, synony

It is evident that the decis mous with promise, under

sion in Wain v. Warlters, taking, engagement, &c. This turned upon the technical imis the word in the statute, and port of the word agreement; why might not the Legislature for in a subsequent case, Egeradopt and use it in its popular ton v. Mathews, 6 East, 307, sense? Where any term of an which arose upon the 17th

1816.

MORRIS

0. STACEY,

was

section of the statute of Frauds, 15 Vesey, jun. 286, his Lord. the Court of K. B. came to a ship decided against the rule in different conclusion. It was

Wain v. Warlters; holding, determined in that case, that that a guarantee in writing to a memorandum signed by the pay the debt of another, was defendants, whereby they a

sufficient without stating any greed to give so much for consideration as between the goods, took the case out of creditor and the surety. His the 17th section of the statute, Lordship observed, “ Until the though the memorandum was case of Wain v. Warlters was not signed by the seller; nor cited, some time ago, I had al, did it express any considera- ways taken the law to be clear, tion for the defendant's pro- that if a man agreed in writing mise, otherwise than by infer- to pay the debt of another, it ence from their own obliga. not necessary that the tion. It is worthy of remark, consideration should appear that the words used in the 17th upon the face of the writing. section are, “ note or memo- That case has determined two randum in writing of the bar. points; first, that a considera. gain, to be signed by the par- tion is necessary; secondly, ties to be charged by such con.. that it must appear upon the tract." In ex parte Minet, 11 writing." Vesey, jun. 189, the Lord It has been determined, Chancellor (Eldon) expressed however, that a guarantee in serious doubts of the propriety writing to pay for any goods of the decision in

which the vendor delivers to a Warlters. 66 There is a va- third person is good, within riety of cases," says his Lord, the 4th section of the 'statute ship,“ directly contradicting of Frauds, as containing a suf. the case in the Court of King's ficient description of the consiBench; which is a most impor- deration of the promise, (name, tant case with reference to the ly, the delivery of the goods consequences. For the under, when made) as of the promise taking of one man, for the itself. Stadt v. Lill, 9 East, debt of another, does not re- 348. See likewise the case of quire a consideration moving Lyon v. Lamb, Fell. on Merc, between them.” In a subse- Guarantees, 228. Phillips . Y quent case, ex parte Gardom, Bateman, 16 Eust, 370.

Wain v.

1816.

SHEW and Another v. THOMSON.

THIS
THIS was an action of debt and detinue by A trader

the assignees of one Thomson a bankrupt, to vant that if recover a sum of money from the defendant, the any one

come whilst be proceeds of an execution. The execution had been was at dinner

or engaged in levied subsequent to the alleged act of bankruptcy. business, she The case turned upon the point, whether an act him." Held of bankruptcy had been committed. The bankrupt structions did had directed his servant to deny him to his credi- not amount

to a direction tors, if any of them should call whilst he was at for a general dinner, or engaged in business. It appeared that therefore, al. a creditor of the name of Shew called one evening ditor called

though a crein the month of June ; the bankrupt saw him, but nied, it was na 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

%

1816.

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

Shew and
Another

0. Thomson.

Plaintiffs nonsuited.

Best, serjeant, and Reader, for plaintiff.

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

(Attornies, Wille-Burgess. ] ]

Garrett v. Moule, 5 T. R. last edition, where the cases
575. Dudley v. Vaughan, I on this subject are collected
Camp. 271. See likewise and methodised.
Cooke's Bankrupt Laws, c. 4.

1816.

„SITTINGS AFTER HILARY TERM, 56 GEO. III.

AT GUILDIALL.

HINDLE v. BELL and Another.

February 20.

Where a debtor is dis

an Insolvent

THE
THIS was an action against the Sheriff of Lon-

don for a false return to a writ of fieri facias. charged under In February 1814, a gentleman of the name of

Act, his proO'Brien took the benefit of the Insolvent Debtors' perty is vested Act, the 54 G. 3. The plaintiff afterwards sued the Peace, un. him, obtained a jodgment, and execution was are chosen, issued in Michaelmas term 1815. Mr. O'Brien wards in then lived in Craven-street, where he had re- althongh he be sided before his discharge. Goods to the value permitted to of 1,5001. had been seized on the premises; and possession of the sheriff was indemnified for his return of nulla and to act as bona.

continue in the

ostensible owner, no creo ditor can take his goods iu

When Mr. O'Brien was discharged, no assign- execution, and ment had been made to any one under the act; sheriff to make

a sale. His but it appeared that his creditors, with the excep- remedy is to tion of Hindle, suffered him to remain in his house, bution under and to occupy it with the usual furniture. An in- the act, or, in ventory of the goods taken under the execution fraud, to apply

to have the was produced, together with a schedule, which Mr. discharge set O'Brien exhibited at the time of his discharge, containing an account and valuation of the furniture, a copy of which had been sent to the plaintiff as a deVOL. I.

M

aside.

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