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v. Wright (12), on the ground that he un- the goods are furnished, is liable at all dertook to be agent for some third persons, to any other person, the promise is void from whom he had no authority. That except in writing.'

I think that may might be suggested if he had said, “The very well be modified to, “is liable at all, board has ordered the work,” but he did or if his liability is made the foundation not. He contented himself with saying, of a contract between the plaintiff and “Go on, Mountstephen, and do the work, the defendant." That would exclude the and I will see you paid.” I conceive case which I put to Mr. Charles, in the that it was competent to a jury, I go course of the argument, of persons, sup, no further than that, I say nothing of posing that a third person was liable, and the general merits of the case, because entering into a contract, “assuming him they are not before us, to find that the to be liable, I will be answerable for his meaning of that answer was, not “I will solvency.” If, in such a case, it turned be liable as surety to the board, if they out that he not liable at all, become liable to you,” making the con- the contract would fail, because there tract one of suretyship, but that it was, would be a failure of that which the " whether the board be liable or not, do parties intentionally made the foundation the work and you shall be paid," or of the contract. The let contractus rather, perhaps, it would be more accurate itself would make an end of the claim, to say, “ though the board be not liable, and not the application of the Statute of yet do the work and you shall be Frauds, whether the contract was in writpaid.” At least the conclusion might be ing or whether it was not in writing. drawn, whether the board be liable or not, I put the case of its being in writing, but do the work and you shall be paid. If not signed, to make it precise, and did not that be so, it amounts to an undertaking mean not signed in order to take it out that the board shall employ him in suc of the Statute of Frauds. I apprehend a way as that they shall pay, or if they the answer would be the same whether do not, then that the defendant will him. the contract was signed or not. The law of self pay. It seems to me rather to come contract gives you as foundation that a perto this, “I will pay you for that work, son was taken to be liable, and that the unless you should happen to be paid suretyship was a suretyship in respect of either by the board, or it may be by the that liability. Take away the foundation of owners, assuming that they come forward principal contract, the contract of suretyand pay, though they be not liable.” ship would fail. So, again, if there was That is the result. It is a bargain, there- a contract with reference to a liability fore, deduced from that conversation, to not existing at the time, in respect of tho pay for the work, though it was known debt not being due at the time and being that there was no person liable at the payable in futuro, that would come under time, and whether a person should become the word default, and there would be no liable in future or not; that is to say, difficulty about that.

So if there was a whether there was or whether there contract, “If A. B. employ you to do might be any person who could be guilty work, I promise to become surety for him of a debt, default, or miscarriage in the that he shall pay you,”-in that case the matter. It is only in respect of such promise would clearly come within the persons that the Statute of Frauds applies. Statute, because, although there was no

The leading case upon the application liability existing at the time when the of the Statute of Frauds to a matter of promise was made, there was a liability this kind has generally been considered contemplated ; and the liability so conto be that of Birkmyr v. Darnell (9), and templated was the foundation for the in note b, to Mr. Evans's edition of Salkeld, promise of the defendant. It was a conit is stated, that “from all the authorities tract of suretyship in respect of a liability it appears, conformably to the doctrine in to be created, and there again the let this case, that if a person, for whose use contractus would prevail. There would (12) 8 E. & B. 647; s.c. 27 Law J. Rep. (N.s.)

be the condition precedent to the arising Q.B. 115.

of any liability, namely, that there should be a principal debtor established before tion was reserved, and no such question the surety became liable. In all these was moved in the Court of Queen's cases, no doubt, one agrees thoroughly Bench, or decided by that Court. The with what was laid down in the Court of question reserved and decided there was Queen's Bench; because you have the to move to enter a nonsuit, if it should case of principal debt contemplated by appear that there was no evidence either the parties ; suretyship founded in respect upon the original declaration, or upon of that principal debt. But in order to the declaration as amended, which ought bring the case within that rule, you must to have been left to the jury; that is to first of all shew that the parties did in- say, any evidence upon which the jury tend that there should be a principal might find that the defendant undertook debtor. In this case, seeing that the par- a principal liability, whether the Board or ties knew that the board was not liable, the owners became liable or not. The and that the plaintiff would not go on, rule was made absolute to enter a nonsuit, unless he had the board or the defendant on the ground that there was no evidence liable, and did not care, having the de- of an original liability on the part of the fendant liable, if the board was liable or defendant. The case before us having been not, the facts seem to exclude, and the framed and settled to raise the question jury might well find that they excluded, upon which we are to pronounce judgthe notion of the defendant becoming ment, the question for the opinion of the surety for a liability either past, present, Court of Appeal is stated to be whether or or future upon the part of the board, and not the defendant is entitled to have the would look upon his contract as a contract

nonsuit entered ; if the Court should be of to pay, whether the board have been, opinion in the negative, then the verdict are, or shall be liable or not, as if the for the plaintiff is to stand and the judgwords had been, “do that work now ment to be entered for him; if it should be and here, and you shall be paid for of opinion in the affirmative, that the dethat work.” That is a case of principal fendant is to have a nonsuit entered ; liability.

the question then is, whether, at the We were asked by Mr. Cole to look at end of the plaintiff's case, the Lord Chief a variety of points in this case, upon Baron would have been justified in di. which he suggested that the true result recting that the plaintiff should be nonought to be a new trial, and not a reversal suited, or that there should be a verdict of the rule directing that a nonsuit should for the defendant. be entered ; but the arguments upon that I do not think it necessary to make any head appear to receive their answer from further remarks upon the judgment in the the form of the reservation. The Lord Court below. It is quite clear from the Chief Baron appears by the case to have report both in the Law Journal Reports and left the question to the jury, whether the in the Law Reports, that the judgment is conversation took place or not. If it founded upon the notion that, upon the were necessary, we might turn to the facts, the parties must be taken to have notes of the Lord Chief Baron, with which supposed the existence of a principal conwe are furnished under the agreement of tract with the board, or, taking Mr. Cole's the parties, and there it would seem that view, with the owners, before there could the question went to the jury in a more be

any contract arising with the defend. specific form ; but in whatever form the ant. It is so stated in the head note in the question went to the jury, that form is Law Journal Reports, which is accurately not complained of by the present rule. We framed in that respect, upon looking at the are not called upon to say whether there judgment; "a supposed liability, The might not have been a more precisely right facts, however, are such, that the jury way of leaving it to the jury, by asking might have thought, as I apprehend corthem whether the defendant contemplated rectly, that it was a supposed non-liability an original liability, or only contemplated of the board that led to what took place a liability as surety for the Board. No between the plaintiff and the defendant. such question was raised; no such ques- In the report in the Law Reports, in

the case

the judgment of Blackburn, J., which ably find that the defendant contracted I do not presume to criticise, except that he would be liable to the plaintiff. for the purpose of finding out, as I PIGOTT, B.— I have had some doubts, am bound to do, the reasons on which but, upon the whole, I think that there he proceeded, there is this passage: "We was evidence to go to the jury. The plainmust take it that the plaintiff, when he tiff was going away, having completed agreed to do the work, thought that he the work upon the sewer.

There was had got the order of the board, but that more work to be done in respect of the he would not have done the work without, connections, and the conversation whioh in addition to the order of the board is set out in the case takes place between through their chairman, the personal pro- the plaintiff and the defendant: the latter mise of the defendant himself that he says, “Go on, Mountstephen, and do the would see him paid." I am not at all work, and I will see you paid.” There criticising the law as laid down, ex- is, therefore, evidence of a direct order to cept so far as it conflicts with Birkmyr do the work, and the plaintiff proceeds to v. Darnell (9); but dealing with that do it upon that assumption. How could judgment upon the question of fact upon such evidence be withdrawn from the which it is founded, I humbly conceive jury? The words, “ I will see you paid,” that it assumes the fact differently from can hardly mean, “I will be gurety for what appears upon the case. as laid some one else, and will see that he pays before us. It assumes that the plaintiff you." thought that he had the order of the CLEASBY, B.-1 have also arrived at the board; whereas it appears upon

conclusion that our judgment must be in that the plaintiff would not go on because favour of the plaintiff. The jury were of he thought he had not got the order of the opinion that the plaintiff's version of the board. The result appears to be that the conversation between himself and the de. jury might well upon the evidence have fendant was correct, and that being taken found an original liability in the defendant, to be so, it is clear that there was evi. a liability not falling within the provisions dence to go to the jury of a contract by of the Statute of Frauds. As that statute the defendant of primary liability to the is out of the question, as the liability plaintiff. It is clear that the plaintiff by such a finding would be established, did not do the work on the responsibility the entering of a nonsuit upon that of the owners of the houses, and that he evidence is a course which could not would not accept such responsibility. have been sustained, and we are therefore [His Lordship went through the facts bound to reverse the judgment of the relating to the conversation as set out in Court of Queen's Bench.

the case.] The answer of the defendant CHANNELL, B.—I agree with the judg- means, in effect,

“Never mind, go on, ment which has been delivered by my and

you shall be paid.” The liability of brother Willes.

the defendant upon this contract is quite KEATING, J.-I am of the same opinion. consistent with the subsequent conduct of The simple question is whether the evi- the plaintiff. dence prodnced at the trial was not such

Judgment reversed. that the learned. Chief Baron was bound Judgment entered for the plaintiff. to leave to the jury the question whether there was an undertaking by the defend

Attorneys - G. E. Philbrick, agent for John ant that he would be primarily liable to Kitson, Torquay, for plaintiff ; Church, Sons & the plaintiff, or whether there was merely Clarke, agents for Francis & Baker, Newton a contract of suretyship on his part. For Abbott, for defendant. the reasons given by my brother Willes, I agree that there was evidence which could not properly be withheld from the jury, and in this respect we differ from the Court of Queen's Bench. There was evi. dence upon which the jury might reason


and charges, and might then have been dis1871.

FELL V. WHITAKER. * trained for by the defendant for the same, Nov. 22.

and the defendant thereby made an un

reagonable distress for the said arrears Landlord ard Tenant-Distress-Exces. sive Seizure-Money paid under Protest

contrary to the statute in such case made Money had and received.

and provided.

Second count-Money received by the A declaration alleged that the plaintiff defendant for the use of the plaintiff, &c. was tenant to the defendant of a house, and At the trial before the learned judge of the defendant wrongfully distrained for cer- the Salford Hundred Court at Manches. tain arrears of rent on goods of the plain- ter, it appeared the plaintiff was tenant tiff of much greater value than the said to the defendant of a house, and that he arrears and of the charges of the distress had assigned the goods in the house by a and appraisement and sale, although part post-nuptial settlement to trustees for the of the said goods was of sufficient value to benefit of his wife. One of the trustees have satisfied the suid arrears and charges, lived in the house with the plaintiff and and thereby made an unreasonable distress his wife, who also resided there and used contrary to the statute. There was a second the goods. The plaintiff went away from count for money had and received. The home, and on his return found a bailiff in plaintiff

, before the distress, kad assigned possession of goods seized to the value of the goods seized to trustees, for the benefit 1001., with a warrant of distress for 181. of his wife. The plaintiff, his wife, and and costs. The amount of rent really due one of such trustees resided in the house. was 91., and an offer was made to pay 91. was in arrear for rent, when the defen- this sum and costs, which was refused by dant distrained for 181. for rent in arrear the bailiff. The plaintiff's attorney then and the costs, and seized goods to the value gave a personal undertaking to pay the of 1001. The plaintiff offered to pay 91. whole amount under protest, and the and costs and charges. This offer wus re- goods were given up. The plaintiff suffused, and the money distrained for and fered annoyance from the acts of the decosts and charges were paid under protest. fendant's bailiff. The learned judge The plaintiff

' suffered annoyance from these directed a nonsait, on the ground that the proceedings :- Held, that the declrration plaintiff had no property in or possession disclosed a good cause of action, and that of the goods seized, and that nothing could there was sufficient evidence of an interest be recovered under the money counts; but in the goods, on the part of the plaintiff, to gave leave to the plaintiff to move the go to the jury in respect of the first count. Court to set aside the nonsuit and have And that the plaintiff was entitled to recover

a new trial. upon this declaration the excess of the money Heywood accordingly moved (on Nov.7) paid under protest, and damages for the and obtained a rule to set aside the annoyance he had suffered.

nonsuit, and for a new trial, on the

grounds, first, that there was evidence to Declaration, first count-That plaintiff go to the jury that the property in the first was tenant to the defendant of a mes. count of the declaration was the property suage at a certain rent payable by the of the plaintiff'; second, that the plaintiff plaintiff to the defendant, and the defen- was entitled to recover on the money dant wrongfully distrained for certain counts. arrears of the said rent, goods of the Herschel now shewed cause. The plainplaintiff of much greater value than the tiff had assigned the goods which were amount of the said arrears and of the seized, and had no property in or possescharges of the said distress and of the sion of them. appraisement and sale thereof, although [LUSH, J.--Suppose they had been part of the said goods was of sufficient seized by a stranger, would the plaintiff value to have satisfied the said arrears have had no remedy?]

Possibly a special action might have * Coram Lush, J., and Hannen, J. been brought, but he cannot recover upon a declaration for excessive distress, be- favour of the defendant's contention. cause the goods are not his. He is not Glyn v. Thomas (4) decides that this action a bailee nor has he the possession. His will not lie. The plaintiff after paying the enjoyment is not interfered with, and if amount claimed, ought to replevy or bring he is a qualified owner it should have detinue. He cannot recover under money been so stated in the declaration.

counts—Knibbs v. Hall (5). [HANNEN, J.—Is he no more than a [HANNEN, J., cited Exall v. Partridge servant?]

(6).] The owner of the goods only can main- If the trustees had paid the money, they tain the action, and this action would could have recovered in an action for be no bar as against him.

money paid. If the goods had been taken [Lush, J.—The plaintiff says, I paid away, they might have had an action. you 181. for the 91. due.]

Heywood in support of the rale. Bare It is not a duress—it is not a wrong possession constitutes a sufficient title as to distrain for more rent than is due.

against a wrong doer- Armory v. Dela[HANNEN, J.-He has been put to great mirie (7). The plaintiff must have had annoyance, and is he to be without a

some possession, for it was his house. At remedy? LUSH, J.-Has it not been any rate the defendant cannot set up the held that distraining per se for an exces- property of the trustees against the sive claim is not actionable, but that if plaintiffBourne v. Fosbrooke (8). money is paid to get rid of the distress [HANNEN, J.-In that case the plaintiff it may be recovered ?]

had possession. Mr. Herschell says that You cannot pay money under the dis- here he has none.] tress, and then recover it back ; the pro- If the plaintiff had become bankrupt, per course is to replevy.

the goods would have been in his order (LUSH, J.-If the tenant has made a and disposition with the consent of the tender, the landlord is a wrong doer.] true owner.

The wrong, if any, is to the trustees. If CHANNEN, J.-I think not. a stranger took the goods, the plaintiff It may be difficult to define it, but would still not be entitled to maintain an there must be a possession in the plaintiff. action.

The law is not that you cannot pay money [HANNEN, J.-Has a man not possession under a distress and then recover it by acof the chair be sits on ?]

tion. If a tenderis made of the amount due, Next, the plaintiff has suffered no the landlord becomes a wrong doer. Loring damage. His enjoyment was not inter- v. Warburton (9) shews that money paid fered with.

after tender and before impounding may [LUSH, J.-—But is this action founded be recovered. The passage from Lord on wrong to property? There could be no Coke cited in the judgment in Glyn v. action by the trustees here, because they Thomas (4) does not apply here. The are not damnified. The goods are not taken law of distress for damage feasant is difaway. The principle of the action is that ferent from that for rent since 2 Will, & you have put the tenant to greater incon. Mary, stat. 1. c. 5. s. 2, and 11 Geo. 2. c. venience than you need to get your rent.] 19-Johnson v. Upham (10) per WightThe real remedy is to tender the amount

man, J. There


be a doubt whether due, and then replevy.

there was an impounding or not in this (LUSH, J.--The plaintiff had the right case, but Johnson v. Upham (10) shews of enjoyment as against you.]

(4) 11 Exch. Rep. 870; s. c. 25 Law J. Rep. Tancred v. Leyland (1), French v. Phil

(n.s.) Exch. 125. lips (2), Gulliver v. Cousens (3), are in (5) 1 Esp. 84.

(6) 8 Term Rep. 308. (1) 16 Q.B. Rep. 669 ; s. c. 20 Law J. Rep. (7) i Smith's L.C. 316. (N.S.) Q.B. 316.

(8) 18 Com. B. Rep. (N.s.) 516; 8. c. 34 Law (2) i Hurl. & N. 564; s. c. 26 Law J. Rep. J. Rep. (N.s.) C.P. 164. (x.s.) Exch. 82.

(9) E. B. & E. 507; 8. c. 28 Law J. Rep. (N.s.) (3) i Com. B. Rep. 788 ; s. c. 14 Law J. Rep. Q.B. 31. (x.s.) C.P. 788.

(10) 28 Law J. Rep. (x.s.) Q.B. 252.

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