plaintiff, an occupier of lands in the parish, and legal proceedings had been taken against him to enforce the demand, it was decided that the promise of the defendant (another parishioner) to indemnify the plaintiff against costs, if he would persist in defending the suit brought against him by the tithe claimant, was binding, though not in writing (g); the defendant not becoming responsible for the debt or default of any other, but merely promising to pay what the plaintiff might lose by defending the promisor's (the defendant's) interest in the suit.

(2). Of the Form and Requisites of a written Contract to guarantee (h). It is now fully settled that, to render a memorandum or agreement in writing valid, under the fourth section. of the statute, the consideration for the promise, as well as the engagement itself, must be stated therein, and that the omission cannot be supplied by parol testimony (i). This doctrine is established (independently of the common law rule of evidence, that parol testimony is not admissible to supply the defects of, or add to, a written agreement (k),) with a view to give full effect to the object of the act, namely, the prevention of fraud and perjury; it being considered that the admission of parol evidence to show the terms or consideration of the contract would induce the mischief which the legislature meant to obviate. It is also considered, that the term "agreement," used in the fourth section includes the consideration for the promise as well as the promise itself.

The following memoranda have therefore been considered insufficient :

"Messrs. W. & Co., I will engage to pay you by half-past

(g) Adams v. Dansey, 6 Bing. 506; M. & P. 245, S. C.; observed upon by Denman, C. J., in Green v. Cresswell, 2 P. & Dav. 434.

(h) As to the general rules in regard to the form and signature of an agreement, reduced into writing under the act, see ante, 66, 70, 71.

(i) Wain v. Warlters, 5 East, 10; Saunders v. Wakefield, 4 B. & Ald. 595; Jenkins v. Reynolds, 6 Moore, 86; 3 B. & B. 14, S. C.; Morley v. Boothby, 3 Bing. 107, 112, 113; 10 Moore, 395, S. C. It seems that if an attorney, in his professional character, give an undertaking to pay the debt

and costs in an action, in consideration of staying proceedings, the court of which he is an officer will entertain a summary application against him, to enforce payment, although the undertaking be void under the statute, because it was not reduced into writing; In re Greaves, K. B. H. T. 1827, cited 1 C. & J. 374; or because the writing does not express the consideration. Semble, Evans v. Duncombe, 1 C. & J. 372. Money paid under a void guarantee, not recoverable back; Shaw v. Woodcock, 7 B. & C. 73.

(k) See ante, 99, 108.

four this day, 561., and expenses on bill of that amount on Hall. J. W. (1)."

"I hereby agree to see you paid within three months from the date hereof the amount of 51. due to you on account of Mr. G. M., jun. (m).”

"As you have a claim on my brother for 51. 17s. 6d. for boots and shoes, I hereby undertake to pay the amount within six weeks from this date, January 14th, 1833 (n).”

"Inclosed I forward you the bills drawn per J. T. A. upon and accepted by L. T., which, I doubt not, will meet due honour, but in default thereof I will see the same paid (o).”

"Mr. R. H. C. of Barbadoes, about to proceed thither in the Mary, having incurred an account with you, amounting to 491. 5s., with the understanding that he is to transmit the amount to you three months after he shall have arrived at Barbadoes, we guarantee his performance of the said engagement, and in failure thereof we will be responsible to you ( p).”

"Messrs. W. will engage to pay the bill drawn by Pitman in favour of S. C. (q):" the declaration stating a promise in consideration that the plaintiff would forbear to prosecute an action against Pitman on the bill.

"To the amount of 100l., consider me as security on J. C.'s account (r)."

"We hereby promise that your draft on B., due at Messrs. M., at six months, on the 27th November next, shall be then paid out of money to be received from St. Philip's Church (s).”

The case of Cole v. Dyer (t) throws considerable light upon this subject. It was there held, that a guarantee in the following form, "R. R., plaintiff, and J. A., defendant: we, the undersigned, jointly and severally undertake and agree to pay G. C. C., gent., the debt and full costs in this action, provided,

(1) Wain v. Warlters, 5 East, 10. (m) Clancey v. Piggott, 4 Nev. & M. 496; 2 Adol. & E. 473; 1 Har. & Woll. 20, S. C.

(n) James v. Williams, 3 Nev. & M. 196; 2 Dowl. P. C. 481; 5 B. & Ad. 1109.

(0) Haves v. Armstrong, 1 Scott, 661; Bing. N. C. 761; 1 Hodges, 179, S. C.; sed vide Morris v. Stacey, 1 Holt, N. P. R. 153, contra.

(p) Ellis v. Levi, 1 Scott, 669, in note.

(9) Saunders v. Wakefield, 4 B. & Ald. 595.

(r) Jenkins v. Reynolds, 6 Moore, 86; 3 B. & B. 14, S. C.

(s) Morley v. Boothby, 3 Bing. 107, 112, 113; 10 Moore, 395, S. C.

(t) 1 C. & J. 461; 1 Tyr. 304, S. C. The declaration stated that the consideration was, that the plaintiff would stay the action. The court said that the memorandum by no means necessarily imported that such was the real consideration.

on or before the 1st day of January, 1831, a sum of 117. 10s. 3d. be not paid to him, the said G. C. C., at his office, as the attorney for the plaintiffs, dated 6th November, 1830;" and containing in the margin the following letters and figures:-" Debt, 6. 11s. 11d., costs, 47. 18s. 4d., 117. 10s. 3d.," does not show a sufficient consideration to take it out of the statute. Lord Lyndhurst, C. B., observed, "On looking at this instrument, various interpretations might be put upon its language, and several considerations, without much ingenuity, conjectured. appears to me, that if, in such a written agreement to be answerable for the debt of another person, two distinct considerations may, with equal probability, be inferred, as the inducement for the engagement, the writing is not taken out of the operation of the Statute of Frauds, and consequently can give no right of action."

It

In Haigh v. Brooks (u), the court held that a memorandum in this form, "In consideration of your being in advance to Messrs. L. in 10,000l., for the purchase of cotton, I hereby give you my guarantee for the amount in their behalf," was not so clearly invalid as to render void a promise made by the defendant in consideration that the same should be given up, more especially as it appeared that the plaintiff had been induced to part with it at the request of the defendant.

In Raikes v. Todd (x), the defendant's guarantee was in the following form, "I hereby undertake to secure to you the payment of any sums of money you have advanced or may hereafter advance to Messrs. H. D. & Co., on their account with you;" and it was held insufficient, the consideration for guaranteeing past advances not clearly appearing.

In Wood v. Benson (y), the guarantee was, " I engage to pay for all the gas which may be consumed in the Minor Theatre, &c., during the time it is occupied by A. B.; and I also engage to pay for all arrears which may be now due." The court thought that this memorandum consisted of two distinct branches; the first, relating to the future supply of gas, they thought was an original order by the party undertaking, so that the statute did not apply; the latter part of them they considered to be void, for not showing the consideration. It was also held, that as the

(u) Haigh v. Brooks, 2 P. & Dav. 477. And see ante, 45, as to giving up a doubtful claim.

(x) Raikes v. Todd, 1 P. & Dav. 138. (y) 2 C. & J. 94.

and

order for a future supply of gas was distinct from the void promise to pay the present arrears, and the declaration contained a count for goods sold, the money due for the gas furnished after the memorandum had been given, was recoverable on that count. The contract was not entire as to the past and future arrears, was not laid in the declaration as an indivisible contract. The cases of Lexington v. Clarke (z), Chater v. Beckett (a), and Thomas v. Williams (b), were therefore held not to apply. In each of those cases, the declaration charged the promises (which were in part bad under the statute) as one entire promise. There was therefore a variance, a failure in proving the contract laid. It should have been discriminated what part was good, and what was defective; and if capable of separation, the pleadings should have been confined to the valid part only, and for that the plaintiff might then have succeeded (c).

When the Consideration sufficiently appears.-If, however, a particular consideration can be reasonably collected, or fairly and satisfactorily inferred, to a moral certainty, from the defendant's memorandum, it is sufficient to satisfy the act (d); and the proper course is to see whether the consideration to be inferred is the same as that stated in the declaration and no other.

On this ground, the following written guarantees have been considered to be valid, as sufficiently descriptive of the consideration::

"I guarantee the payment of any goods which T. S. delivers to J. N. (e)." The future supply is obviously the consideration.

"I do hereby agree to become security for R. G., now your traveller, in the sum of 500l., for all moneys which he may receive on your account (ƒ)."

"To Mr. N.—I do hereby agree to bind myself to be security to you for C. J.; late in the employ of Mr. R., for whatever while in your employ you may intrust him with, to the amount of 50l., in case of default to make the same good (g).”

M. & W. 500; Bentham v. Cooper, 5 M. & W. 621. Whether guarantee of debt with interest shews consideration was forbearance, ante, 274, note (g).

(e) Stadt v. Lill, 9 East, 348; 1 Camp. 242, S. C.; and see Combe v. Woolf, 8 Bing. 156.

(f) Ryle v. Curtis, 8 D. & R. 62. (g) Newbery v. Armstrong, Moo. & M. 389; S. Č. in 4 C. & P. 59; 6

"I hereby guarantee to you the sum of 250l., in case M. P. should make default in the capacity of agent and traveller to you (h)."

And in Shortrede v. Clerk (i), where the defendant signed the following instrument, "You will be so good as to withdraw the promissory note, and I will see you at Christmas, when you shall receive from me the amount, together with the memorandum of my son's, making in the whole 451." and evidence was given of a note for 35l., made by defendant's son to plaintiff's order, but not of the memorandum; and a subsequent admission by defendant that he had to pay 451. for his son was also proved. It was held that the plaintiff was not bound to produce the memorandum, and that the consideration of the guarantee was sufficiently stated to satisfy the Statute of Frauds, there being no evidence of any other note to which the defendant's agreement could apply.

The following memorandum has also been held to be sufficient:" I hereby guarantee the present account of Miss H. M., due to R. T. S. & Co., (the plaintiffs), of 1127.;—and what she may contract from this date to the 30th September next (k)." But it seems difficult to consider such memorandum sufficient, in reference to the case of Wood v. Benson (1); at least as regards the 1127.

The under-mentioned memoranda have also been adjudged to be sufficient, in regard to the disclosure of consideration :

"Mr. P.-Sir,-M. L. having chartered your ship, Roberts, to bring a cargo from New Brunswick, and the same being landed to the charterer, and he having paid you one half the freight, and given you his acceptance for the remaining half at four months' date, I engage to be accountable to you for the amount of said acceptance, should it not be paid when due (m).”

"Messrs. B. & Co.,-Gentlemen-our mutual friends, S. & Co., having accepted the under-written bill drawn on them by your firm, I hereby give my guarantee for the due payment of the same, should it be dishonoured by the acceptors (n)."

Bing. 201; and 3 M. & P. 509; recognised per Parke, B. in Kennaway v. Treleavan, 5 M. & W. 501.

(h) Kennaway v. Treleavan, 5 M. & W. 498.

(i) Shortrede v. Clerk, 1 Adol. & Ellis, 57.

(k) Russell v. Moseley, 3 B. & B. 211; 6 Moore, 521, S. C. (1) Ante, 519.

(m) Pace v. Marsh, 1 Bing. 216; 8 Moore, 59, S. C.; sed qy.

(n) Boehm v. Campbell, 3 Moore, 15; 8 Taunt. 639, S. C.; sed qy.