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 presumption, both in law and reason, against such parties having taken upon *156] themselves the debts of others; so this presumption should be met by the strong proof of the actual writing of the party, and thus, that the party himself should be secured against surprise by the formalities of a deliberate act. That these purposes would be ill accomplished by requiring evidence only of the writing of the promise, separated from the consideration upon which such promise was grounded. The promise and the consideration were in fact one thing a whole-an agreement. And how many cases might occur in which the promise was conditional and contingent; in which the equity of the promise, therefore, required the performance of the previous condition, and in which the conscience and justice of the case demanded the same proof; that is to say, proof of the same kind and degree of the performance of the condi tion, and of the obligation of the promise. But how was this equality given, if, whilst the promise was proved by the mere evidence of the handwriting, the performance of the consideration, or previous condition, was to be proved by parol evidence.

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 or 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 natural equity opposed to a nudum pactum. It is required only to be proved by stronger evi*157] dence, 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 considera. non. It is consequently no objection to this construction of the act to say, that it would give efficacy to a nudum 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 appear. The proection 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 known to every one, is 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 sufficiently 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 section of the statute of frauds, the Court of K. B. came to a different con. 158] clusion. 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 consider. ation 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 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 Gar dom, 15 Vesey, jun. 286, his lordship decided against the rule in Wain v. Warlters; holding, that a guaranty 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 guaranty in writing to pay for any goods which the vendor delivers to a third person is good, within the 4th section of the statute of frauds, as con. taining a sufficient description of the consideration of the promise, (namely, 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 Merc. Guaranties, 228. Phillips v. Bateman, 16 East, 370.

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*SHEW et al. v. THOMSON.

[*159

A trader directs his servant " that if any one should come whilst he was at dinner or engaged in business, she should deny him." Held, that such instructions did not amount to a direction for a general denial; and, therefore, although a creditor called and was denied, it was no act of bankruptcy.

THIS 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 had directed his servant to deny him to his creditors, if any of them should call whilst he was at dinner, or engaged in business. It appeared that a creditor of the name of Shew called one evening in the month of June; the bankrupt saw him, but afterwards reprimanded his servant for introducing him, 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, Serjt., 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 *instructions not to be a direction for a general denial. It is no act of bankruptcy.

Best, Serjt., and Reader, for plaintiff.

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

[*160

Plaintiffs nonsuited.

Garrett v. Moule, 5 T. R. 575. Dudley v. Vaughan, 1 Camp. 271.

See likewise Cooke's

Bankrupt Laws, c. 4. last edition, where the cases on this subject are collected and methodised.

*161]

*SITTINGS AFTER HILARY TERM, 56 GEO. III. AT
GUILDHALL.

HINDLE v. BELL et al.

Where a debtor is discharged under an insolvent act, his property is vested in the Clerk of the Peace, until assignees are chosen, and afterwards in his assignees; and although he be per. mitted to continue in the possession of his property, and to act as ostensible owner, no creditor can take his goods in execution, and compel the sheriff to make a sale. His remedy is to obtain a distribution.under the act, or, in a case of fraud, to apply to have the discharge set aside.

THIS was an action against the Sheriff of London for a false return to a writ of fieri facias. In February, 1814, a gentleman of the name of O'Brien took the benefit of the Insolvent Debtors' Act, the 54 G. 3. The plaintiff afterwards sued him, obtained a judgment, and execution was issued in Michaelmas term, 1815. Mr. O'Brien then lived in Craven-street, where he had resided before his discharge. Goods to the value of 1,5007., had been seized on the premises; and the sheriff was indemnified for his return of nulla bona.

When Mr. O'Brien was discharged, no assignment had been made to any one under the act; but it appeared that his creditors, with the exception of Hindle, suffered him to remain in his house, and to occupy it with the usual furniture. An inventory of the goods taken under the execution was produced, together with a schedule, which Mr. Brien exhibited at the time of his discharge, containing an account and valuation of the furniture, a copy of which had been *162] sent to the plaintiff as a *detaining creditor. Mr. O'Brien, subsequent to his discharge, had redeemed some plate which he had previously pawned, and had laid down some new carpets in his rooms; there were likewise a few coals in the cellar. The value of the plate and additional furniture, which was not included in the inventory exhibited at the Court of Insolvent Debtors, was about 1007.

Lens, Serjt., for the defendants.-The plaintiff has mistaken the law and the action. He had no right to seize these goods in execution. All Mr. O'Brien's property upon his discharge was vested, first in the Clerk of the Peace; then in the assignees to be appointed under the act. Suppose he had a hundred creditors, wishing to deal mildly with him, and to leave him in possession of his goods, and one creditor not so inclined; his remedy is to oblige a sale: he cannot take possession under an execution, and pay himself his whole debt.

GIBBS, C. J.-The plaintiff had no right to take such property as belonged to Mr. O'Brien at the time of his discharge. It was vested in the Clerk of the Peace; he might have compelled the appointment of an assignee, and have obtained a distribution; but he could not take these goods in execution, unless fraud of a gross kind were shown; and, even then, I am inclined to think that the regular course would be, to apply to set aside the discharge. But the sheriff is bound to seize the newly-acquired property, and is answerable to the extent of such new property as can be ascertained.

*163] *With respect to the plate which was pawned, the creditors had only a right to it subject to the lien of the pawnbroker. If Mr. O'Brien has redeemed it, he stands in the place of the pawnbroker; and the money which he acquired to redeem it was subsequently-acquired property. He became entitled to the possession of it; but the assignee under the Insolvent Act could only have it subject to the pledge. The sheriff, therefore, might have seized Mr. O'Brien's interest in it. For the coals, the carpets, and the interest in the plate, the plaintiff is entitled to recover.

The jury found a verdict for the plaintiff, damages 441.

The Solicitor General, Best, and Vaughan, Serjts., and Espinasse, for the plaintiff.

Lens, and Onslow, Serjts., Bolland and Spankie, for defendants.

*THORNTON et al. v. SIMPSON et al.

[*164

A. contracts to sell to B. 50 tons of hemp, to be shipped from Cronstadt or St. Petersburgh; the ship's name to be declared as soon as known, and to arrive before the 31st of December. On the 5th of September, A. gives notice to B. that the hemp was shipped on board the Lively: on the 20th he sends a second notice, that if the quantity did not come by the Lively, he would make it up from the cargo of another vessel. On the 29th, A. gives a third notice, that 20 tons would come by the Lively, and the rest by another ship. B. accepts the 20 tons, but refuses to receive any more. Held, that B. was bound to receive the remainder of the hemp, unless he could show that he had sustained some special damage by A.'s nonperformance of the precise terms of the contract.

THIS was an action on a contract, dated the 5th of April, 1815, for the delivery of 50 tons of Russian hemp, to be shipped from Cronstadt or St. Petersburgh, in June or July, O. S. The ship's name to be declared as soon as known, and to arrive before the 31st of December, or the contract to be void. Sixty-four tons came by a vessel called the Lively, which arrived first; and forty-four tons, part of the sixty-four, were delivered by plaintiffs under former and distinct contracts with other persons. Twenty tons were offered to the defendant, and accepted; and the residue of the fifty tons which had been collected at St. Petersburgh by the shippers for the Lively, were sent by the Paragon, the former ship having no room for them. On the 5th of September, plaintiff's gave notice that the hemp was shipped on board the Lively. On the 20th they sent a second notice, stating, that if the quantity did not come by the Lively, they reserved to themselves the right of making it up by the Unity or Paragon. On the 29th of September they gave a third notice, that twenty tons would be shipped by the Lively, and thirty by the Paragon. The defendants said they were willing to accept the twenty tons by the Lively, but did not conceive themselves bound to receive any part of the hemp by another vessel. *The three ships arrived within a few days of each other.

[*165

Lens, Serjt., for the defendants, contended, that the plaintiffs had not fulfilled the contract on their part. A great inconvenience arose from the hemp not coming by one ship. The necessity of insuring the goods in several vessels increased the expense. If the whole of the hemp contracted for came together, the purchaser might effect a better sale. The plaintiffs ought at least to have delivered all that came by the Lively: though the defendants had received twenty tons, they did not consider themselves bound to take the hemp by piecemeal.

GIBBS, C. J.-If the defendants were not bound to take the whole of the hemp, they were not obliged to take part. They stand on three points: 1st, that they were not bound by the contract to receive one part by one ship and one part by another. 2d, that the plaintiffs are concluded by their notice, that the hemp would come by the Lively. 3d, that they should have delivered all the hemp which came by the Lively. I am of opinion the plaintiffs might call upon the defendants to receive what came between July and December: this was the substantial part of the contract. If, however, the defendants could show that they had sustained any loss by the plaintiffs' non-performance, the contract would be discharged; but as it does not appear that they were injured,

and might as well have received the hemp by one ship as by another, the
*166]
plaintiffs have not *forfeited the benefit of their contract by varying their
first notice. As to the last point, they were not bound to deliver the
whole of the cargo of the Lively, because they were not bound to deliver the
whole by one ship.

Best, Serjt., and Marryatt, for the plaintiffs.
Lens, and Blostett, Serjts., for defendants.

REPORTER'S NOTE.

Verdict for plaintiffs.

An agreement whereby the defendants sell to the plaintiff a certain quantity of goods expected by a particular vessel, on arrival, is a conditional contract, dependent on the arrival of the goods. No action will, therefore, lie for the non-delivery of the goods on the arrival of the vessel in ballast. Hawes v. Humble, 2 Camp. 327.; consequently the statement of such an agreement as an undertaking to sell on the arrival of the vessel is a fatal misdescription of the contract. Boyd v. Siffkin, 2 Camph. 326. per Ellenborough, C. J.

Where defendants sold to the plaintiffs all the hemp, not exceeding 300 tons, which might be loaded in a certain vessel by the agent of the concern, who shipped only 71 tons for defendants, and filled up the vessel on the account of other correspondents; it was holden that the defendants were not liable for the non-delivery of the 300 tons. Hayward and Others v. Scou gall and Others, 2 Campb. 56. per Ellenborough, C. J. See likewise Waddington v. Oliver, 2 N. Rep. 61.; and Atkinson v. Ritchie, 10 East, 530.

*167]

*LEVY v. COSTERTON.

In an action of covenant on a charter party, in which the defendant covenanted "that the vessel should be sufficiently furnished with every thing necessary and needful for the voyage in question," which was to Cagliari in Sardinia: Held, that it was her duty to have a bill of health on board; and the plaintiff having been put to great inconvenience and expense on account of the ship not being provided with such document, that the defendant was responsible for the loss occasioned thereby.

COVENANT on a charter-party for affreightment, in which the defendant cove nanted, inter alia, that the vessel, let to freight, "should be tight, staunch, and strong, and sufficiently furnished with every thing necessary and needful for the voyage in question," which was to Cagliari in Sardinia. The breach assigned was, "that the vessel was not well and sufficiently furnished with every thing necessary and needful for such a ship and voyage;" alleging that the ship sailed on her voyage without a document or bill of health, which the plaintiff averred to be a necessary document for the ship and voyage in question The declaration then alleged that, from the want of this document, the ship was prohibited from entering the port of Cagliari; and that she was compelled to perform a longer quarantine than would have been requisite, if she had been furnished with the necessary documents. The declaration likewise alleged a loss on the sale of the cargo from the delay occasioned by the want of the bill of health.

The defendant had put several pleas upon the record: the substance of them was, 1. That the vessel was supplied with every thing necessary and needful for the voyage. 2. That a bill of health was not necessary for the voyage to Cagliari.

*The ship's name was the Samuel; she had been freighted by the *168] plaintiff with a cargo of iron for Cagliari, and was to bring back oil, &c. She cleared out of the port of London on the 7th of September, and arrived at Cagliari in October, under convoy of the Cossack, one of the king's ships. The plague was then at Malta, and a general alarm prevailed at Cagli ari. On her arrival an application was made to the Board of Health for her admission into the port; but the board refused, alleging that she had not proVOL. III.-10.

G