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CHAPTER IV.

OF THE REQUISITES TO SUPPORT A COLLATERAL

PROMISE.

The Statute of Frauds (a) requires, in order to make a collateral promise binding

1st. That the agreement for the promise, or some memorandum or note thereof, be in writing; and, 2ndly. That it be signed by the party to be charged, or his agent lawfully authorized. Subsequent cases have determined that the consideration (which must be a sufficient consideration) must appear upon the face of the agreement.

It is proposed to consider, although not in the order above-mentioned, I. What is deemed a sufficient consideration to support a collateral promise. II. What is a sufficient statement of the consideration in writing. III. What is a sufficient memorandum, or note of the agreement. IV. What is a sufficient signing by the party, or his agent. And, V. Who will be deemed an agent lawfully authorized.

I. What is deemed a sufficient consideration to support a collateral promise.

The law requires that every contract (the same not being under seal) shall be made upon a good and sufficient consideration (6), and the mere promise by one person to be answerable for the debt, default, or miscarriage of another, without any con

(a) See ante, p. 2.

(6) Rann v. Hughes, 7 T. R. 350 n.; S.C. 4 Bro. P. Č. 27; Pillans v. Van Mierop, 3 Burr. 1663;

Walker v. Walker, Holt, 328 ;
Plowd. 305 a, 308 b; Lees v.
Whitcomb, 5 Bing. 34; Calthorpe's
Case, Dy. 336 b.

sideration, is nudum pactum (3), and cannot be enforced(c)(4); but it is a sufficient consideration for such a promise, if the party to whom the promise is made, grants any suspension or forbearance of his right, or sustains or is exposed to any detriment, damage, or inconvenience, in consequence of the act done or forborne by him (d); or if the party in whose favour the promise is made, or given, derives any benefit or advantage from the promise(e).

The least spark of a consideration, (if it amounts to a good and sufficient consideration in law, and falls within the rule above laid down,) seems to be sufficient to support a collateral promise (); and it is not essential that any benefit should accrue to the party promising (g).

(c) Pillans v. Van Mierop, 3 (f) Pillans v. Van Mierop, 3 Burr. 1663.

Burr. 1663; Pullen v. Stokes, 2 H. (d) Pillans v. Van Mierop, 3 Blk. 312; Smith v. Jones, Ow. Burr. 1663; Stone v. Withepoole, 133; Bailey v. Croft, 4 Taunt. Ow. 94; Copper v. Dickenson, 3 611; Cotton v. Westcott, 3 Bulstr. Bulstr. 70; Jones v. Ashburnham, 187 ; Dutchman v. Tooth, 5 Bing. 4 East, 455 ; Smith v. Jones, Ow. N. C. 577 ; and see Longridge v. 133; Best v. Jolly, i Sid. 38; Dorville, 5 B. & Ald. 117 ; Copper Longridge v. Dorville, 5 B. & Ald. v. Dickenson, 3 Bulstr. 70; Smith 117; and see the judgment of the v. Algar, 1 B. & Ad. 603; and the Court in Freeman v. Freeman, 2 observations of Wood, B., in LilBulstr. 269.

ley v. Hewitt, 11 Price, 494; and (e) Stone v. Withepoole,

supra ; of Lord Ellenborough in Phillips and see the judgment in Freeman v. Bateman, 16 East, 356. v. Freeman, supra ; Longridge v. (g) See the judgment of the Dorville, supra; Jones v. Ash- Court in Freeman v. Freeman, 2 burnham, supra ; and see the ob- Bulstr. 269; and see Stone v. servation of Buller, J., in Nerot Withepoole, Ow. 94; Bailey v. v. Wallace, 3 T. R. 17.

Croft, 4 Taunt. 611. (3) Mr. Justice Blackstone observes, in the 2nd vol. of his Commentaries (p. 445), that our law has adopted the maxim of the civil law, that ex nudo pacto non oritur actio : but the reader is referred to a very learned note of the Editor of the Treatise on Equity (vol. 1, p. 335), to show that the civil law did not consider a verbal agreement, without consideration, if attended with certain ceremonies, as nudum pactum.

(4) Bills of exchange and promissory notes, prima facie, import a consideration, and it is therefore not necessary, except in particular cases, to give evidence of consideration aliunde.

Considerations are either erecutory or executed.

An erecutory consideration is where something is to be done by the party receiving the undertaking, subsequently to the giving of the promise(h); thus, if S. engages to be answerable for the payment of any goods which C. shall deliver to P., the delivery of the goods is the consideration, and when the delivery takes place, the consideration attaches (i), and a right of action accrues to C. to recover the amount, although the undertaking contain no promise on the part of C. to deliver the goods, and although no cross action could have been brought against C., either at the suit of S. or P., if the goods had not been delivered. In the above description of promise there is a benefit to the party who receives the goods, and a possible detriment to him who supplies them.

An executed consideration is where the act or thing has been done or performed, the same not having been done or performed in consequence of the previous request of the party engaging to be answerable (j), as if one happened to be in a shop, and there buying goods, and after he had bought the goods, another person being then present, says to the seller, “If he do not pay you, I will,” such a promise is void for want of a sufficient consideration(k), for the debtor obtains no benefit from the promise of the third party, nor does the creditor suffer, nor is he exposed to any detriment or inconvenience(5). So where A.'s servant was arrested

(h) Stapp v. Lill, 1 Camp. 242; v. Benson, 2 Cr. & J. 94. S. C, nom. Stadt v. Lill, 9 East, ( Thorner v. Field, i Bulstr. 348.

120. (i) Stapp v. Lill, supra ; Wood (k) Thorner v. Field, supra.

(5) In Mayhew v. Crickett, (2 Swanst. 185; S. C. 1 Wils. C. C. 418,) the case, so far as it relates to the subject of consideration, was in substance as follows: Batteley was indebted to the defendants, his bankers, on the balance of accounts subsisting between them, in the sum of 1,0001.; to secure which, the bankers held a warrant of attorney

in London for a trespass, and I. S., who was well acquainted with the master, bailed the servant, and afterwards A. for his friendship promised to save him harmless, and I. S. was compelled to pay the condemnation money ; it was held, that an action did not lie upon A.'s promise, because the bailing, which was the consideration, was past and executed before(1).

A consideration, therefore, which is executed, is not sufficient to support a subsequent promise, un

(1) Hunt v. Bate, 3 Dy. 272 a.

to confess judgment, given to them by Batteley. The bankers being dissatisfied with the large balance due to them, informed Batteley, that unless he procured a joint note from persons of responsibility, they would take possession of his effects; and Batteley promising to give unexceptionable security, the bankers added, that, if they were satisfied with the security, they might advance 3001. more. The plaintiffs, Mayhew and Gent, having agreed to become sureties, two promissory notes for 650l. each, payable to the bankers on demand, were signed, the one by Batteley and Mayhew, and the other by Batteley and Gent. The bankers never advanced the further sum of 3001., or any part of it, and afterwards commenced an action against Mayhew upon his promissory note. A bill in equity was then filed by Mayhew against the bankers, charging that the note ought in equity to be considered as void, and given without consideration; for as no advance had been made, it ought not to be considered as a security for the existing debt. Before the common injunction was obtained for want of answer, the bankers recovered a verdict at law. Subsequently, the common injunction to stay execution was obtained, which the bankers, upon the filing of their answer, moved to dissolve ; and Lord Eldon directed the injunction to be continued, upon the terms, however, of Mayhew's paying the money into court without prejudice.

It is submitted, with reference to the question under consideration, that the security given by Mayhew was invalid in the hands of the bankers, as against him, for want of a consideration; and that if a bill in equity had been filed by Mayhew in the first instance, and the common injunction obtained, such injunction would, upon a motion made by the bankers to dissolve it, have been continued, without the condition attached to it of paying the money into court; but it is to be observed, that Mayhew had, before the interlocutory order in equity was pronounced, allowed a verdict to be had against him, and which judgment at law would virtually have been overruled by the order made upon motion, if the injunction had been continued without the payment of the money into court; besides, it does not appear, from the report of the case, that there was any question available in Mayhew's favour which might not have been raised as well at law as in equity.

less indeed the act was done at the request of the party promising (m), for then the promise is not a naked one, but couples itself with the precedent request, and is therefore founded on a good consideration.

So in a case of an executed or past consideration, as where a debt is due from A. to B., a promise by S. to pay the debt upon the debtor's failing so to do, provided the creditor will give the debtor time for payment, and will abstain from pursuing legal measures to recover his demand, and the creditor accedes to the proposed terms of forbearance and delay, and grants such indulgence accordingly, such promise will be binding upon the surety ; for the consideration of forbearance is a benefit to the debtor, and is attended with consequences that may be injurious to the creditor(n).

The forbearance, however, by the creditor, must, in order to constitute an adequate consideration for the promise, be for a definite or certain time (0), or for a considerable (p), reasonable (9), or convenient time (r); for the Court will adjudge what shall be said to be considerable, reasonable, or convenient : and an agreement to forbear indefi

(m) Sidenham and Worlington's Case, 2 Leon. 224, pl. 286; S. C. Godb. 31, nom. Sydenham and Worlington's Case; S.C. nom. Sidnam v. Worthington, Cro. Eliz. 42, Com. Dig. tit. Action on the Case upon Assumpsit, B. 12; Payne v. Wilson, 7 B. & Cress. 423; S.C. 1 Man. & Ry. 708; Emmott v. Kearns, 5 Bing. N. C.559; Craske v. Johnson, 2 Bulstr. 74; Pillans v. Van Mierop, 3 Burr. 1663 ; and see Hayes v. Warren, Kelynge,

& Cress. 423; S. C. 1 Man. & Ry. 708; Best v. Jolly, 1 Sid. 38 ; Tricket v. Mandlee, i Sid. 45; and see Thomas v. Williams, 10 B. & Cress. 664.

(0) Reynolds v. Prosser, supra; Hatch and Capel's Case, Godb. 202; Tricket v. Hanby, 1 Keb. 114; S. C. nom. Tricket v.Mandlee, 1 Sid. 45.

(p) Mapes v. Sidney, Cro. Jac. 683.

(q) Lingen v. Broughton, 3 Bulstr. 206 ; and see Johnson v. Whitcott, 1 Roll. Abr. 24, pl. 33.

(r) Tricket v. Maudlee, 1 Sid. 45; Sadler v. Hawkes, 1 Roll. Abr. 27, pl. 49.

117.

(n) Sadler v. Hawkes, 1 Roll. Abr. 27, pl. 49; Smith v. Algar, 1 B. & Ad. 603; Reynolds v..Prosser, Hardr. 71 ; Payne v. Wilson, 7 B.

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