Itself. 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 appearing 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 argued 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 maintained, 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 un 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 2. STACEY. And against such parties having 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 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 nulum 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 suffi-. ciently 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 decision in Wain v. Warlters, turned upon the technical import of the word agreement; for in a subsequent case, Egerton v. Mathews, 6 East, 307, which arose upon the 17th 1816. MORRIS บ. 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 inference from their own obligation. It is worthy of remark, that the words used in the 17th section 66 are, note or memorandum 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 undertaking of one man, for the debt of another, does not require a consideration moving between them." In a subsequent case, ex parte Gardom, 66 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 statuteof 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 Mere, Guarantees, 228. Phillips v. Bateman, 16 East, 370. 1816. THIS SHEW and Another v. THOMSON. A trader directs his ser◄ vant "that if any one should come whilst he was at dinner or engaged in business, she should deny him." Held that such in to a direction 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 credi- not amount tors, if any of them should call whilst he was at for a general denial; and 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 and was de ruptcy. |