Consideration for Assumpsit-Forbearance. But it is said in this last case, be given in evidence. This opithat if there be no assets, it shall nion has been overruled since. [See 1 B. Moore, 29. S. C. further, as to foreign government securities, 3 B. & C. 45. Gorgier v. Mieville. 7 Bing. 284. Lang v. Smyth. 5 M. & P. 78. S. C.] An assignment of a chose in action need not be by deed. 4 T. R. 690. Howell v. M'Ivers. Nor indeed need it be in writing. 4 Taunt. 326. Heath v. Hall. [There is an exception to the general rule of law that a chose in action cannot be assigned, viz., that where there is a debt due from A. to B., and a debt to the same or a larger amount due from C. to A., and the three agree that C. shall be B.'s debtor instead of A., and C. promises to pay B., the latter may maintain an action against C. 5 B. & A. 228. Wilson v. Coupland. 3 B. & C. 842. Hodgson v. Anderson. 5 D. & R. 735. S. C. 8 B. & C. 395. Fairlie v. Denton. 2 M. & R. 353. S. C. But it is a necessary ingredient to this exception, that the original debt from A. to B. should be extinguished; for B. cannot sue C., if he retains the right to sue d. 3 B. & C. 591. Cuxon v. Chadley. 5 D. & R. 417. S. C. 4 B. & C. 163. Wharton v. Walker. 6 D. & R. 288. S. C. (See, also, 6 M. & S. 239. Parker v. Wise. Parker v. Wise. 4 H. & N. 603. Liversieg v. Broadbent.) It is also essential, that at the time. when C. promised to pay B., there should be an ascertained debt due from A. to B. 8 B. & C. 395. And in the action brought against C. by B., he must declare specially on the agreement; for he cannot recover as for money had and received to his use; 4 B. & C. 163; unless C. were originally indebted to A. for money had and received. 5 B. & A. 228. So if a debtor, by an order given to his agent, appropriates a fund in his hands to the discharge of the debt, and the agent pledges himself to the creditor so to appropriate the fund, the order is irrevocable; 3 B. & C. 842. 9 Bing. 372. 2 Russ. & M. 457. Fitzgerald v. Stewart; and the creditor may sue the agent. A. & E. 548. Lilly v. Hays. 1 N. & P. 26. S. C. 9 C. B. 549. Yutes v. Hoppe. 14 M. & 5 Consideration for Promise by Executor. 1 Rol. Abr. 24, pl. 33. 2 Rol. W. 713. Dickinson v. Marrow. 5 H. & N. 225. Noble v. Discount Company. And the existence of the debt, though not due instanter, is a good consideration for the appropriation. 9 M. & W. 411. Walker v. Rostron. But the creditor cannot sue the agent, unless the latter has assented to the appropriation so as to pledge himself to the creditor; for otherwise the debtor may countermand the order, and there is no privity between the creditor and the agent. 14 East, 582. Williams v. Everett. 3 B. & A. 643. Yates v. Bell. 4 B. & C. 163. 1 C. & J. 83. Wedlake v. Hurley. 3 Meriv. 652. Scott v. Porcher. 4 B. & Ad. 611. Baron v. Husband. 1 Nev. & M. 728. S. C. 5 B. & Ad. 504. Howell v. Batt. 2 Nev. & M. 381. S. C. 1 M. & W. 365. Brind v. Hampshire. 5 A. & E. 115, 116. 6 Nev. & M. 807. 6 M. & W. 22. Sewell v. Raby. 5 Exch. 61. Malcolm v. Scott. 6 Q. B. 930. Cobb v. Becke, 4 Hare, VOL. I. Rann v. Hughes (b). In 1 Ves. 126. Reech v. Kenneyal, Lord Hardwicke observes, that if an executor promises to pay a debt of his testator, a consideration must be alleged; as of assets come to his hands; or of forbearance; or if admission of assets is implied by the promise; other wise it will be but nudum pactum, and not personally binding upon the executor (c). 185. Cotesworth v. Stephens. 8 Q. B. 134. Jones v. Carter. 3 Law Rep. Q. B. 542. Fleet v. Perrins.] (b) [But even in this case it is not necessary to aver in the declaration that the defendant had assets. 7 Taunt. 580. Powell v. Graham. 1 B. Moore, 305. S. C. 3 Bing. 20. Dowse v. Coxe. 10 B. Moore, 272. S. C.] (e) In all cases of forbearance to sue, such forbearance must be either absolute; Cro. Jac. 683. Mapes v. Sydney; or for a definite time; Cro. Jac. 47. Fish v. Richardson; [or for a reasonable time; 2 H. & N. 517. Oldershaw v. King.] 1 Rol. Abr. 24, pl. 33. Johnson v. Whitcott [see 7 B. & C. 423. Payne v. Wilson]: forbearance for a little; 1 Rol. Abr. 23, pl. 25; or for some time; ibid. pl. 26; is not sufficient. It must be shewn in the declaration, that there was some person liable to be sued; 4 East, 455. Jones v. Ashburnham; but the omission Q Consideration for Promise by Executor-Statute of Frauds, s. 4. (2) It appears by this case, that before the Statute of Frauds, 29 Car. 2, c. 3, a promise by an executor or administrator would not make him personally liable, unless a sufficient consideration were stated. So it is since the statute, though such promise be in writing. For the statute has made no alteration in the mode of pleading, and consequently it does not appear upon the declaration, whether there was a promise in writing or not. It is matter of evidence only; 2 Salk. 519. Anon. 3 Burr. 1890. Williams v. Leper, per Yates, J. It is as necessary, therefore, that a sufficient consideration should be alleged in the declaration since the statute, as it was before. The common law requires, that there should be a sufficient consideration to support the promise, and the statute adds a still further requisite, namely, that the promise should be in writing. 7 Brown, P. C. 556. Rann v. Hughes. S. C. 7 T. R. 350, n. (). 1 Ves. 126. Reech v. Kennegal. Cowp. 289. Hawkes v. Saunders. The fourth section of the statute enacts (inter alia), "that no action shall be brought, whereby to charge an executor "or administrator, upon any spe"cial promise to answer damages "out of his own estate, or where by to charge the defendant upon "any special promise to answer "for the debt, default, or miscar riage of another person, unless "the agreement upon which such action shall be brought, or some memorandum or note "thereof shall be in writing, "and signed by the party to "be charged therewith, or some "other person thereunto by him "lawfully authorised." The word "agreement," used in this section, means the consideration of the promise; and therefore the consideration of the promise must be in writing as well as the promise itself, otherwise it is void. 5 East, 10. Wain v. Warlters (d). We Eliz. 909. Jennings v. Harley. Yelv. 19. S. C. See Selwyn's N. P. 49, tit. Assumpsit, where all the cases are collected. See further, as to forbearance to executors, post, 2 Saund., notes to Barber v. Fox. (d) The doctrine here laid down was very much doubted in several subsequent cases, but was fully established in the case of Suunders v. Wakefield, 4 B. & A. 595, Consideration for Promise by Executor-Statute of Frauds, s. 4. have already seen, that a promise by an executor, &c., in writing will not bind him without a suffi where all the previous authorities upon the subject are collected. [This rule proved a grievance to the mercantile community, and was at last rescinded by the 3rd section of the Mercantile Marine Act (19 & 20 Vict. c. 97), by which it is enacted that "no spe"cial promise to be made by any "person after the passing of that Act, to answer for the debt, default, or miscarriage of another person, being in writing, and "signed by the party to be charged "therewith, or some other person by him thereunto lawfully authorised, shall be deemed invalid "to support an action, suit, or "other proceeding to charge the cient consideration. So with respect to promises to answer for the debt, &c., of another, or collateral may supply the consideration for a guarantee, it cannot be admitted to explain the promise. 7 C. B. 361. Holmes v. Mitchell. But the instrument may be explained. by reference to extraneous circumstances existing between the parties. 10 A. & E. 334. Brooks v. Haigh. 16 Q. B. 89. Bainbridge v. Wade. 1 C. B. 251. Johnston v. Nicholls. 10 C. B. 765. Colbourn v. Dawson. Exch. 154. 1 Goldshee v. Swan. 8 C. B. 436. Edwards v. Jerons. And the principle of construction, ut res magis valent quam pereal may be well applied to the construction. 1 H. & N. 255. Broom v. Batchelor. 14 Q. B. 431. Steele v. Hoe. 3 Law. Rep. C. P. 52. Newell v. Bradford. The statute however is satisfied, if the writing states the subject-matter of the contract, and is signed by the party to be charged. It need not. be signed by both parties. 2 Bing. N. C. 735. Laythourp v. Bryant. 1 Scott, 327. S. C. 2 C. B. N. S. 67. Smith v. Neule. 4 H. & N. 139. Liverpool Borough Bank v. Eccles. Where there is a proposal signed by the party intended to be bound, and accepted by word of mouth, this is sufficient. 3 Drew. 523. Warner v. Willington, per Kindersley, V.-C. 4 H. & N. 143. The Promise to Answer for Debt, &c., of another-Stat. of Frauds, s. 4. promises as they are generally called, there must be a sufficient consideration, such as forbearance, &c., alleged in the declaration, otherwise they also are not binding though reduced into writing: as, where A. has sold and delivered goods to B., and afterwards C. promises A. in writing to pay for them, this promise is a mere nudum pactum, and void, because it was so at the common law, and names or descriptions of both the parties must appear in the instrument. 2 E. & E. 349. Williams v. Lake. Where a contract in writing or note exists, which binds one party, any subsequent note in writing, signed by the other, is sufficient to bind him, provided it either contains in itself the terms of the contract, or refers to any writing which contains them. 3 A. & E. 355. Dobell v. Hutchinson. 5 Nev. & M. 251. S. C. It matters not from how many papers the promise is to be collected, so long as they can be sufficiently connected in sense. But the connection in sense cannot be introduced by parol evidence, but must appear upon the face of the documents themselves. 9 H. of L. 78. Fitzmaurice v. Bayley. 6 H. of L. 238. Ridgway v. Wharton. 10 H. of L. 472. Peek v. North Staffordshire Railway. Though the signature be in the beginning or middle of the instrument, it is the statute, as we have seen, makes no alteration. 1 Rol. Abr. 27, pl. 49 (e). But if C. had requested A. to forbear to sue B. for the debt, and A. had forborne accordingly, that was a good consideration at the common law to support such promise; ibid; and is good since the statute, if the promise be in writing. 2 Str. 873. King v. Wilson. Bull. N. P. 281. 2 Wils. 94. Fish v. Hutchinson. as binding as if at the foot of it; the question being open to the jury, whether the party, not having signed it regularly at the foot, meant to be bound by it as it stood, or whether it was left so unsigned because he refused to complete it. 2 Mees. & W. 653. Johnson v. Dodgson. See 2 Law Rep. App. S. 5 H. of L. 127. Caton v. Caton. Secus, where the instrument concludes "as witness my hand," and no signature follows. 4 Scott, N. R. 486. Hubert v. Turner. it is necessary that the signature should be so introduced as to govern or authenticate every material and operative part of the instrument. 2 Law Rep. App. S. 127. A memorandum in writing made after action brought, is not sufficient. 9 Mees. & W. 36. Bill v. Bament. Bament. See 1 M. & Gr. 773, 774. Fricker v. Tomlinson, per Maule, J.] And (e) 4 Taunt. 117. Barrell v. Trussell. S. P. [2 Mann. & Gr. 614. French v. French.] |