the said C. A. P. and T. P. the payment of the said notes so received and taken, and kept and held by the plaintiffs as aforesaid; of all which premises the defendant had notice, and the defendant has not since the making of his promise aforesaid been accountable for the payment of or paid or satisfied so many of the said notes so made and issued by the said C. A. P. and T. P. as aforesaid, as 30,000l. would extend to pay, or any of such notes whatever, but hath wholly made default; by reason of all which premises the defendant became liable to pay to the plaintiffs upon request the amount of the several sums payable by the said notes so by them taken and received, and held and kept as aforesaid; and being so liable, the defendant in consideration thereof promised, &c. The fourth count stated that whereas before and at the time of the defendant's promise the said C. A. P. and T. P. were indebted to the plaintiffs in 30007., upon certain promissory notes payable on demand for divers sums therein respectively mentioned, before that time, among other promissory notes of the same sort and description, made and issued by the said C. A. P. and T. P., and then in the possession of the plaintiffs as the holders thereof, and then wholly unpaid and unsatisfied, and thereupon afterwards on the 22d of March 1810, in consideration of the premises, and also in consideration that the plaintiffs at the instance and request of the defendant would forbear to sue the said C. A. P. and T. P. for the recovery of the value of the said several notes so in the possession of the plaintiffs, the defendant promised the plaintiffs to be accountable for the payment of all the said promissory notes then issued by the said C. A. P..and T. P. as far as 30,0001.

1812.

PHILLIPPS

against BATEMAN.

In Error.

1812.

PHILLIPPS
against
BATEMAN.
In Error.

And at the trial before

30,000l. would extend to pay; and then the plaintiffs
alleged their forbearance from that time to sue C.
A. P. and T. P.; and that though the said C. A. P.
and T. P. afterwards, and while they continued so
indebted to the plaintiffs, became bankrupt and unable
to pay, &c., of all which the defendant had notice;
yet that the defendant, though requested, had not been
accountable to them for the payment of, nor had paid
the said notes, &c. The fifth count was similar to
the last, alleging a promise by the defendant in consi-
deration that the plaintiffs would forbear and give time
to the said C. A. P. and T. P. for the payment of
30001. upon
their notes. The defendant pleaded
that he did not undertake and promise in manner
and form as the plaintiffs had complained against him,
on which issue was joined.
the Lord Chief Justice of C. B., a verdict was found
for the plaintiffs upon those five counts for 31197. 4s.,
for which they afterwards obtained judgment, and their
costs. A bill of exception was tendered at the trial to
the direction of the learned Chief Justice to the jury,
upon the evidence; which was signed and recorded by
him, and error assigned thereupon, that he declared
and delivered his opinion to the jury that the evidence
offered and produced on the part of the plaintiffs was
sufficient, and that the same was admissible and ought
to be allowed to entitle the plaintiffs to a verdict on
the five counts stated; whereas the evidence was not
admissible nor sufficient for that purpose; and error
was also assigned in giving the verdict and judgment
thereupon.

The bill of exceptions stated that upon the trial

of

of the issue the counsel for the plaintiffs called G.
Bowling, a witness, who proved that C. A. Phillipps
and T. Phillipps were partners, and carried on business
as bankers at the Milford Bank, long before the 22d of
March 1810, and until their failure in July following.
That on the 21st of March 1810 there was a great run
on the Milford Bank, and on that day the witness was at
the bank, and saw the defendant, who lived at Slebeck,
and was a man of property there, but who had no
concern in the bank, come in, and heard him ask what
was the cause of the run upon the bank, and heard him
also say,
"the notes of the bank are good, and if the
holders will bring them to Slebeck, I will take them for
corn, or at Bristol, for sugar." That the defendant
then went into a room with the bankers, and in about an
hour and an half afterwards came out again into the
bank, where the witness still was, and where many
persons were waiting for payment of the notes of the
Milford Bank, and the defendant, in the presence of the
witness, spoke generally to the persons, and said, “I
have come to a resolution to support the bank with
30,000l." The witness then told the defendant that he
had kept the persons there to hear it, and that it would
be of great satisfaction to the country. The witness
further proved, that the persons who were there for pay-
ment of their notes were satisfied, and said they would
take no more money than was necessary for their present
occasions, and would keep the rest of their notes until
they got into currency again. The witness further stated,
that nothing was said at that time about any written.
paper, but after the persons had left the place, he repre-
sented to the defendant that many of the persons who

were

1812.

PHILLIPPS against BATEMAN.

In Error.

1812.

PHILLIPPS
against
BATEMAN.
In Error.

were holders of notes lived in his neighbourhood, and that he should be glad of an authority in writing for using the defendant's name, and that he would sketch out such an authority in writing as he thought would be sufficient; and that he did draw out the following form, which was signed by the defendant on the next day, and which was duly proved by a subscribing witness, and was duly stamped, viz. "I Nathaniel Phillipps, of “Slebeck, in the county of Pembroke, Esq. do hereby "authorize Mr. Geo. Bowling to assure the inhabitants "of the town of Pembroke and its vicinity, that I do

hereby undertake to be accountable for the payment "of the notes issued by the Milford Bank, as far as the

sum of 30,000l. will extend to pay; which will be an "additional security to the public to that amount to the "estate and effects of Charles Allen Phillipps and Thomas "Phillipps, Esqrs. the partners in the said bank. Mil"ford, 22d March 1810. (Signed) "Nath. Phillipps," and witnessed. The witness then stated that he read this paper at the door to the multitude who were there, and that it was afterwards printed and dispersed about by messengers amongst the different bankers in the neighbourhood. But upon his cross-examination by the defendant's counsel, he stated that the plaintiffs, who were bankers at Haverford West, were not present that day at the Milford Bank, and that he did not know of the delivery of any copy of the said written paper to them; that the witness was an agent for the Milford Bank, employed in circulating their notes; that he continued to circulate them until the time of their failure in the July following; and that in the interval between the signing the said written paper and the failure of the Milford Bank,

Bank, he circulated several thousand pounds worth of notes, and has no doubt that they were all paid. The plaintiffs' counsel then called W. Reynolds, who stated that he was a clerk to the plaintiffs' banking-house in 1810, at Haverford West, which was seven miles from the Milford Bank; and then he produced a bundle of notes, amounting in value to 31197. 4s., all which bore date prior to the 22d of March 1810; that these notes were notes of the Milford Bank, drawn by C. A. P. and T. P. and payable to bearer on demand for the sums therein respectively mentioned; that these notes came into the possession of the plaintiffs after the time of the said paper having been signed by the defendant, and before the Milford Bank stopped payment; and that the plaintiffs heard of the engagement made by the defendant on or about the day of its date. That the plaintiffs were in the habit of exchanging notes with the Milford Bank every week, and that all these notes came into their hands since the last exchange, and that the plaintiffs took none of them after the breaking of the Milford Bank. That he went to the Milford Bank on the 17th of August 1810, and made there a formal demand of payment of these notes, but there was nobody there to pay them; and with this evidence the plaintiffs' counsel closed their case. Whereupon the defendant's counsel objected that the evidence produced on the part of the plaintiffs was not sufficient, nor admissible to entitle the plaintiffs to a verdict, on the following grounds; first, that there was no evidence whatever of any contract between the plaintiffs and the defendant. Secondly, that there was no evidence whatever of any consideration having existed between the plaintiffs and the defendant to support any undertaking on the part of the defendant to guaranty the

payment

1812.

PHILLIPPS
against
BATEMAN.
In Error.