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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 31191. 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,
aguinst BATEMAN. In Error.
if any, was not expressed in the contract; which therefore was void by the statute of frauds.
Ist, This was only an engagement on the part of the plaintiff in error that he would support the bank with 30,0001., 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.
(6) 2 Lev. 211. cited in Dulton v. Poole.
1812. being bound to take the notes or to forbear demanding
payment of them ; but a promise is not good unless PHILLIPPS
there be a consideration at the time; it cannot be made
must be a consideration moving to the party himself, and
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.
(6) Str. 592.
against BATEMAN. lu Error.
mere chose in action which cannot be assigned, because
(a) Action upon the Case upon Assumpsit. B. 1,
against BATEMAN. In Error.
it is laid down, that if 4. 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 Poll. 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
(a) 27 H. 8. 24. (6) 1 Vent. 318. 332. (c) Cowp. 437.