« PreviousContinue »
improbability. A person has equivocal sense is contrary to
a right to give and grant simply the spirit of the act, or insuf-
and absolutely, and therefore, ficient for it, it may be allow-
with or without a considera- able to choose the more con.
tion. 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 suffi-
The 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 con-
liance 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 im-
is the word in the statute, and port of the word agreement;
why might not the Legislature for in a subsequent case, Eger.
adopt and use it in its popular ton v. Mathews, 6 East, 307,
sense ? Where any term of an which arose upon the 17th
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,
determioed 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. Wariters 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 anotber, it
ence from their own obliga. was 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 Wain v. which the vendor delivers to a
Warlters. “ There is a ra, 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 consi-
Bench; 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. op Merc,
þetween them.” In a subse- Guarantees, 228. Phillips. Y.
quent case, ex parte Gardom, Bateman, 16 East, 370,
Shew and Another v. THOMSON.
THIS was an action of debt and detinue by A trader
directs his ser. I the assignees of one Thomson a bankrupt, to want « that it recover a sum of money from the defendant, the any one should
come whilst bę proceeds of an execution. The execution had been was at dinner
or engaged in levied subsequent to the alleged aet of bankruptcy, business, she
should deny 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
denial ; and dinner, or engaged in business. It appeared that therefore, al.
though a crea creditor of the name of Shew called one evening ditor called in the month of June ; the bankrupt saw him, but 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 kervant received from her master. I conceive such
instructions not to be a direction for a general denial. It is no act of bankruptcy.
Best, serjeant, and Reader, for plaintiff.
Lens, serjeant, and E. Lawes, for defendant.
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.
SITTINGS AFTER HILARY TERM, 56 GEO. III.
Hindle v. BELL and Another.
THIS was an action against the Sheriff of Lon- Where a
debtor is dis. 1 don for a false return to a writ of fieri facias. charged In February 1814, a gentleman of the name of
of an Insolvent O'Brien took the benefit of the Insolvent Debtors' perty is vested
in the Clerk of Act, the 54 G. 3. The plaintiff afterwards sued the Peace, un.
til assiguees him, obtained a judgment, and execution was are chosen,
and afterissued in Michaelmas term 1815. Mr. O'Brien
he had no assignees; and then lived in Craven-street, where he had re- a
De althongh he be sided before his discharge. Goods to the value permitted to
continue in the of 1,5001. had been seized on the premises; and possession of
his property, the sheriff was indemnified for his return of nulla and to act as
owner, no creo ditor can take
his goods in When Mr. O'Brien was discharged, no assign- execution, and
compel the 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, i
obtain a distriand to occupy it with the usual furniture. An in- the act, or, in
a case of ventory of the goods taken under the execution fraud, to apply
to have the was produced, together wiih 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 de