1812.

PHILLIPPS
against
BATEMAN.
In Error.

payment of these notes. And, lastly, that, admitting such a contract to have been entered into as is stated in the declaration, and admitting that there was a sufficient consideration for it, yet that such contract was an agreement by the defendant to answer for the default of third persons, and was therefore a promise within the statute of frauds, and must be proved by writing, and by writing only; but that the written paper produced in evidence, and signed by the defendant, was not a sufficient agreement within that statute, because it only stated the undertaking of the defendant, but did not state the consideration on which such undertaking was founded. But to this the plaintiffs' counsel insisted upon the admissibility and sufficiency of the evidence offered by them to entitle the plaintiffs to a verdict. And thereupon the Chief Justice delivered his opinion, that the evidence offered by the plaintiffs was sufficient, and that the same was admissible and ought to be allowed to entitle the plaintiffs to a verdict, and with that direction he left the issue to the jury, who thereupon found a verdict for the plaintiffs on the first five counts of the declaration, and 31197. 4s. damages, and a verdict for the defendant as to the other counts. Whereupon the defendant's counsel excepted to the said opinion and directions of the Chief Justice, for the reasons stated, and tendered their bill of exceptions, which the Chief Justice signed, &c.

Tindal, for the plaintiff in error, insisted upon the three foregoing grounds of objection: first, that there was no contract between the plaintiff and defendants; 2dly, no consideration for any contract; 3dly, the consideration,

if

if any, was not expressed in the contract; which therefore was void by the statute of frauds.

1st, This was only an engagement on the part of the plaintiff in error that he would support the bank with 30,000., and not that he would be liable to any individual holders of notes; but supposing it otherwise, still as the defendants were neither holders of notes, nor present at the time when the engagement was made, they were not parties to it, but the engagement, such as it is, was made with other persons, who could not assign it, for it is but a chose in action; and except in the case of the king, or where by the law merchant bills of exchange, or by the statute promissory notes, are made transferrable, a chose in action cannot be assigned. If it should be said that the engagement was made with the persons present, as trustees for or representatives of the then holders, and all future holders of notes, it may be answered, that then the action should have been in the names of the persons to whom the promise was made; 1 Roll. Abr. 30. tit. Action sur Case, Z. Qui avera action; Clifford v. Berry (a), and Norris v. Pine (b). And as to the promise itself as laid in the declaration, it is not supported by the evidence; for the declaration states the promise in two ways, viz. to be accountable to such of the public as were or should be holders of the notes, whereas according to the evidence the promise was only to the inhabitants of Pembroke and its vicinity; and to be accountable to the defendants in error, of which there was no evidence. 2dly, There was not any consideration, for there was no mutuality between the parties, neither the inhabitants of Pembroke and its vicinity, nor the public,

(a) 1 Vin. Abr. 334.

(b) 2 Lev. 211. cited in Dutton v. Poole.

1812.

PHILLIPPS against BATEMAN.

In Error.

1812.

PHILLIPPS

against BATEMAN. In Error.

being bound to take the notes or to forbear demanding payment of them; but a promise is not good unless there be a consideration at the time; it cannot be made good by matter ex post facto, Earle v. Peale (a); and it must be a consideration moving to the party himself, and not to a stranger, Crow v. Rogers (b). 3dly, The case is within the statute of frauds (c), because there is no consideration stated in the written contract, which, according to Wain v. Warlters (d), is an essential part of the agreement, and must be shewn upon the face of it. Again, the consideration is differently stated in the different counts, and in the third there is no consideration whatever; all that is stated is, that the defendant being desirous of supporting the credit of the house, made a certain declaration, and the promise is laid as consequent on the legal liability of the defendant to pay; but there is no legal liability from that which is nudum pactum. Then if there be one count that is clearly bad, it is sufficient for the plaintiff in error, because joint damages being given on all the counts, they cannot be severed, but the whole is bad.

W. E. Taunton, contrà. The consideration for the promise was, that the persons present at the making of it would forbear to press the bank for immediate payment, and though the promise was no doubt limited to the notes then issued, yet it was not limited to the persons then present, or the then holders of the notes, but extended to all those who might thereafter become holders. And this promise is not, as it has been contended, like a

(a) Salk. 386.
(c) 29 Car. 2. c. 3. s. 4.

(b) Str. 592.

(d) 5 East, 10.

mere

mere chose in action which cannot be assigned, because
the notes themselves, which are the subject-matter of
the promise, being assignable, the promise may well ac-
company them. Then as to the objection that the con-
sideration is not to be found in the written agreement, the
answer is, that it is apparent on the face of the under-
taking, it results from the words and obvious meaning of
the written agreement; and this also affords an answer
to the objection made to the 3d count, that it sets out no
consideration but only the written agreement. Again,
forbearance is a consideration, although it be for never so
short a time; for, according to Com. Dig. (a), that which
is for the benefit of the defendant, or to the trouble or
prejudice of the plaintiff, will amount to a consideration.
Now here it appears that many persons upon hearing the
promise were satisfied, and said they would forbear to
demand payment of the notes, at that time, so that there
was a prejudice to some persons. In Pillans v. Van
Mierop (b) the defendants were held liable on their pro-
mise, because the effect of it was to make the plaintiffs
forbear, and to divert them from using due diligence,
and yet it was forbearance, not in favour of the de-
fendants, but of a third person; but nevertheless that
was held a sufficient consideration. So in Reynolds v.
Prosser (c) it was contended in a very learned argu-
ment of the reporter, that the plaintiff had not any
real prejudice by the forbearance stated as the considera-
tion of the defendant's promise; but the Court, notwith-
standing the forbearance was short, and that only during
the pleasure of a third person, was of opinion that the
consideration was sufficient, and the plaintiff had his judg-
ment. Again, in 1 Roll. Abr. 27. Action sur Case, pl. 47.

(a) Action upon the Case upon Assumpsit. B. 1.
(c) Hardr. 71.

(b) 3 Burr. 1663.

1812.

PHILLIPPS

against BATEMAN.

In Error.

it

it is laid down, that if A. be arrested by B. for a debt, and a stranger undertake to pay B. if he will forbear A. per paululum temporis, and B. discharge A., this is a good consideration, although B. arrest him an hour after. But, 2dly, upon the question first made, whether the defendants in error can take advantage of the promise; the rule is, that assumpsit may be brought either by the person to whom the benefit accrues, or by the person to whom the promise is made; Jordan's case (a), Dutton v. Poole (b), Martyn v. Hind (c), Sadler v. Payne (d), 1 Roll. Ab. 31, Action sur Case, pl. 8. Marchinton v. Vernon (e), Potter v. Rayworth (f). Lastly, as to the objection arising out of the decision of Wain v. Warlters on the 4th sect. of the statute of frauds, not only has the propriety of that decision been questioned by the Lord Chancellor in a case Ex parte Minet (g), who said that it had been contradicted by a variety of authorities, but it has been expressly overruled in Ex parte Gordon (h); and the same clause of the statute has received a different construction in cases relating to the sale of lands, in Cotton v. Lee (i), and Fowle v. Freeman (k); and in Egerton v. Matthews (1), which indeed turned upon the 17th section of the act, but which section only differs from the 4th in using the word bargain instead of agreement, this Court did not adopt the same construction as in Wain v. Warlters.

Tindal in reply. As to Jordan's case, the promise was made to the plaintiff's wife, who was considered as his