« ΠροηγούμενηΣυνέχεια »
arrear(u), or having entered with an intent to distrain (v), he is induced to give up the distress, or to refrain from distraining, in consequence of an undertaking given by a third party to pay the landlord such rent as should appear to be due to him from the tenant, the promise is not within the statute. And if the promise to pay the rent that is due, is unconditional and without qualification, and the landlord is induced to relinquish his right to the goods in consequence of that promise, it is immaterial whether the party promising has any beneficial interest in the matter, or is simply a trustee(w); or, if interested, that he does not derive the advantage which he expected when he gave the promise; as where the goods are, unknown to the party promising, subject to superior claims (2x); or that the goods were of less value than the amount of the rent due (y); or that the promise was given by the party under a notion (which proved to be erroneous) that the tenant had been declared a bankrupt, and that the party giving the promise was his assignee (2). But the promise must not extend to that for which the goods were not answerable, as if the promise to the landlord is not only to pay him the rent that was due, but also the accruing and future rent; for as regards the latter, the landlord had no power of recovering it by distress, and the promise by such third person, would, as to such accruing and future rent, be a promise to answer for the debt of another within the meaning of the
(u) Edwards v. Kelly, 6 M. & Sel. 204 ; Stephens v. Pell, 2 Cr. & Mees. 710.
(v) Williams v. Leper, 3 Burr. 1886; Bampton v. Paulin, 4 Bing. 264.
(w) Edwards v. Kelly, 6 M. & Sel. 204.
(x) Stephens v. Pell, 2 Cr. & Mees. 710.
(y) Gregory v. Williams, 3 Meriv. 582; but see the observations of Lord Tenterden, C. J., in Thomas v. Williams, 10 B. & Cress. 664 ; and of Aston, J., in Williams v. Leper, 3 Burr. 1886; S. C. 2 Wils. 308.
(2) See Pell v. Stephens, 2 Myl. & K. 334.
statute (a). So where A. gives up to B. policies of insurance on which A. has a lien, to secure himself against bills, which on the faith of that lien he had accepted for the accommodation of the assured, and the person to whom he delivers them, promises to discharge the bills and give A. the same indemnity that his lien afforded him(6); or where the sheriff having taken goods in execution upon a fieri facias, a stranger promises to the officer to pay him the debt, in consideration that he would restore them(c); or where a tradesman having had goods delivered to him by their owner to repair, parts with those goods upon which he has a lien, on the promise of a third person to pay the demand (d); or where a defendant having been taken on a capias ad satisfaciendum, is discharged out of custody by consent of the plaintiff
, on the promise of a third person to pay
that debt; the debt of the original defendant being put an end to by bis discharge(e); or where a person promises the widow of an intestate, that if she will permit his name to be joined with hers in the letters of administration of his assets, he will make good any deficiency of assets to pay the intestate's debts (f); or where A. sells goods to B., who being unable to pay for them, transfers them to C., and C., with the assent of A., promises A. to pay for them, whereby the debt of B. is extinguished (g); or where A. being insolvent, an agreement is entered into between several of his creditors and B., whereby B. agrees to pay the creditors 10s. in the pound, in satisfaction of their debts, which they agree to accept, and to assign their debts to B.(h); or where an insolvent who was about to leave the country in fear of an arrest from one of his creditors, another creditor undertakes, that if the insolvent will execute to him an assignment of all his property, he will pay the debt of the creditor from whom he apprehends an arrest, in the first instance out of the proceeds, and apply the residue in satisfaction of his own demand, and the surplus, if any, to the insolvent(i); or where the plaintiff in an action having issued execution against A., A., without the assent of the plaintiff, conveys all his property to B., who thereupon undertakes to pay the plaintiff the debt due from A., the plaintiff withdrawing the execution (k); these have been held not to be within the statute.
(a) Thomas v. Williams, 10 B. (9) Browning v. Stallard, 5 & Cress. 664.
Taunt. 450; and see (6) Castling v. Aubert, 2 East, Hough, 1 Salk. 29; Lacy V. 325; S P. Barrell v. Trussell, M'Neile, 4 Dowl. & Ry. 7; Oble 4 Taunt. 117.
v. Dittlesfield, 1 Ventr. 153; Wil(c) Love's Case, i Salk. 28. son v. Coupland, 5 B. & Ald. 228;
(d) See Lord Eldon's observa- Israel v. Douglas, 1 H. Blk. 239; tions in Houlditch v. Milne, 3 Esp. Hodgson v. Anderson, 3 B. & Cress. 86.
842; S. C. 5 Dowl. & Ry. 735 ; (e) Goodman v. Chace, 1 B. & Crowfoot v. Gurney, 9 Bing. 372 ; Ald. 297; and see Atkinson v. and Fairlie v. Denton, 8 B. & Settree, Willes, 482 ; and Bird v. Cress. 395; and the judgment of Gammon, 3 Bing. N. C. 883. Buller, J., in Tatlock v. Harris,
(f) Tomlinson v. Gill, Ambl. 3 T. R. 174.
THE CONSTRUCTION OF COLLATERAL
An instrument of suretyship is construed in the same manner as any other instrument is construed ; namely, by having regard to the intention of the contracting parties, as it appears upon the instrument, animus hominis est, anima scripti ; and which intention is to be sought out from the whole con
(h) Anstey v.Marden, 1 N. R. 124.
(i) Gregory v. Williams, 3 Meriv.
(k) Bird v. Gammon, 3 Bing. N. C. 883.
text of the instrument taken together, ex precedentibus et consequentibus optima expositio(); and when it is stated that a surety is not bound beyond the scope of his engagement(m), or the precise terms of his obligation (n), applying to it the strict letter of the law (0), it must be understood, that the contract clearly and plainly points out upon what condition, and to what extent, the surety intended to make himself liable (p); for if there is any ambiguity in the instrument itself, which cannot be explained by having recourse to the custom of the trade, in a case where the guarantee relates to a mercantile transaction (9), the words of it are to be taken as strongly against the party giving the instrument, as the sense of them will admit of (r)(1).
(1) Barclay v. Lucas, 1 T. R. Wardens of St. Saviour v. Bos291 n. ; Dance y. Girdler, 1 N. R. tock, 2 N. R. 175; Pearsall v. 34; Kirkby v. Wright, 2 Myl. & Summersett, 4 Taunt. 593; Dance K. 131 ; Metcalf v. Bruin, 12 East, v. Girdler, 1 N. R. 34. 400; Strange y. Lee, 3 East, 484 ; (o) Samuell v. Howarth, 3 Meriv. Payler v. Homersham, 4 M. & Sel. 272; Glyn v. Hertel, supra ; Stra423; Irish Society v. Needham, ton v. Rastall, 2 T. R. 366; Bacon 1 T. R. 482 ; and see the judg- v. Chesney, 1 Stark. 192. ment of the Court in Drummond (p) See Solly v. Forbes, 2 Brod. v. the Duke of Bolton, Sayer,
& B. 38. and in Parker v. Wise, 6 M. (9) Combe v. Woolf, 8 Bing, & Sel. 239.
156; Philips v. Astling, 2 Taunt. (m) Dance v. Girdler, supra ;
206. Wright v. Russell, 2 Blk. 934; (r) Mason v. Pritchard, 12 East, S. C. 3 Wils. 530.
227 ; Hargreave y. Smee, 6 Bing, (n) Glyn v. Hertell, 8 Taunt. 244 ; S. C. 3 Moo. & P. 573. 208 ; S. C. 2 J. B. Moo. 134; the
(1) A Judge of great eminence has delivered an opinion which seems to be at variance with the proposition above laid down. In Nicholson y. Paget, (1 Cr. and Mees. 48,) a question arose whether a guarantee given to the plaintiff to be answerable for goods to be supplied to a person of the name of Lerigo, to the amount of 501., was continuing guarantee, or was at an end after the plaintiff had once supplied goods to that amount: and Bayley, B., upon that occasion, said, “ Now this is a contract of guarantee, which is a contract of a peculiar description, for it is not a contract which a party is entering into for the payment of his own debt, or on his own behalf, but it is a contract which he is entering into for a third person, and wę
I. Of absolute guarantees, and propositions tending to guarantees.
The writing or undertaking may be either, Ist. An absolute guarantee; or, 2ndly. A proposition tending to a guarantee.
1st. When the writing or undertaking is an absolute guarantee, the person receiving such guarantee, may act upon it, without notifying his intention so to do, to the person giving such guarantee(s).
The following are examples of absolute guarantees :
(8) See Oxley v. Young, 1 Esp. 424 ; S. C. 2 H. Blk. 613.
think that it is the duty of the party who takes such a security, to see that it is couched in such words, as that the party so giving it may distinctly understand to what extent he is binding himself. It is not unreasonable to expect from a party who is furnishing goods on the faith of a guarantee, that he will take the guarantee in terms which shall plainly and intelligibly point out to the party giving the guarantee, the extent to which he expects that the liability is to be carried.” Opposed, however, to this dictum, is the opinion of Tindal, C. J., as reported in the case of Hargreave v. Smee, (6 Bing. 244,) where the judgment of the Court of Common Pleas was given upon a similar description of guarantee as that in Nicholson v. Paget, and his Lordship there says, “The question is, what is the fair import to be collected from the language used in this guarantee? the words employed are the words of the defendant in this cause, and there is no reason for putting on a guarantee a construction different from that which the Court puts on any other instrument. With regard to other instruments, the rule is, that if the party executing them leaves any thing ambiguous in his expressions, such ambiguity must be taken most strongly against himself.”
The rule as to the interpretation of instruments is thus stated in Sheppard's Touchstone, (p. 87.) “Verba chartarum fortius accipiuntur contra proferentem, et quælibet concessio fortissime contra donatorem interpretanda est ;" and see also Co. Litt. 183 a ; Dann v. Spurrier, 3 Bos. and P. 339; Doe v. Dixon, 9 East, 15; Thorpe v. Thorpe, 1 Lord Raym. 235; and the observations of Richardson and Hulton, Justices, in Keble v. Halls, Litt. 363, 370; and there seems to be no reason why a guarantee should not be subject to the same rule ; it is, in almost all cases, upon the faith of the guarantee alone, that the person receiving it, is induced to give credit, or to supply goods to a third party, and the instrument ought therefore to be expounded (when doubtfully expressed) most to the advantage of him who receives it.