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agent; and Dutton v. Poole (a) was a special case which turned principally upon the nearness of kindred in which the plaintiff stood to the promisee; Marchinton v. Vernon is but a loose note at nisi prius, and Martyn v. Hind, and Potter v. Rayworth went upon the ground that there was evidence of an admission by the defendant that he had contracted with the plaintiff.
against BATEMAN. In Error,
Lord ELLENBOROUGH, C. J. This case has led to a line of argument of very considerable extent, and as three matters of exception were taken to the learned Judge's direction, the duty owing to them has been well satisfied by arguing the case to that extent : but when the Court come to their decision, it would be losing time if they were to decide on a more extended ground than that which the case itself calls for. It appears that this is not a case of an individual promise, for there is not any promise to an individual, but only a promise to add 30,0001. to the then failing funds of the Milford Bank, and not a. promise to the holder of any aliquot part of the notes of the house. The promise is to be accountable for the payment of the notes issued by the Milford Bank as far as the sum of 30,0001. will extend to pay; thus far the promise goes; what follows, viz. that this would be an additional security to the public to that amount, &c. is only matter of observation upon the effect of the foregoing promise. Such then is the promise in its nature, supposing there was a consideration for it, which is quite another thing; and in its extent, I cannot carry it farther than a promise to the inhabitants of Pembroke and its vicinity ; if therefore the party would avail himself of it,
(a) ? Lev. 210.
against BATEMAN. In Error.
he should bring himself within that class of persons, by stating that he was an inhabitant of Pembroke or its vicinity. But the engagement is to be accountable as far as 30,0001. ; then can that be considered as an undertaking to each individual holder of a ll. note, that the party will become liable to an action at the instance of each ; or is it not rather the obvious construction of such an engagement that he will furnish the house with 30,0001. in aid of their funds, distributable, as their funds, amongst the creditors of the house? He could not contemplate each individual holder, who were at that time in nubibus as to him, and still less could he contemplate a promise to every individual constituting the public at large. Therefore it seems to me that admitting there was a consideration, there was no promise to support this action. But it may be asked, what consideration was there, for without touching upon Wain v. Warlters, which I shall forbear to do, is there any consideration of forbearance even for a moment ? I admit if there be any consideration, the Court will not weigh the extent of it. But here the individual holder might immediately have brought forward his demand, and pressed for payment : nothing is expressed about forbearance, and nothing of that sort is to be inferred from the promise. Therefore without considering the objection as it arises out of the case of Wain v. Warlters, it appears to me that neither in respect of the promise nor of the consideration can this action be supported. Forbearance is stated in one of the counts as the consideration, but the case fails in making that out.
GROSE, J. I think it clear upon both objections stated by my Lord, that this action is not maintainable.
against BATEMAN. In Error.
LE BLANC, J. There is a variety of other objections which arise out of this record, but this goes to the substance of the engagement, and the very cause of action. The question is, whether this was a promise to each individual holder of a note, to the extent of 30,0001., or only a promise to supply 30,000.. to the general fund of the bank. And it appears to me that it must be considered in the latter point of view, and that the party never intended to make himself liable to each individual holder. The intention seems to have been this ; suppose there were 100,0001. worth of notes in circulation, the party then comes forward with an undertaking to be accountable to the extent of 30,0001., that is, to secure to the holders, by supplying the funds of the bank to that amount, at least 6s. in the pound, in addition to their former security. This seems to me the fair meaning of the undertaking, and this makes it unnecessary to go into the other objections.
BAYLEY, J. I think it never could be the intention of the defendant in the original action to do more than contribute 30,0001. towards the supply of the funds of the bank, his neglecting to do which would either be the subject of an action by the whole body of note-holders, if that could be, or of a bill in equity to compel performance; if the defendant's intention went farther, then if notes to the amount of 100,0001. were in circulation, he would become liable to as many actions; but such an intention is not fairly to be attributed to this engagement. It will be unnecessary to go through the different objections made to the several special counts, because I agree with the Court that this defendant did not engage to become liable to the Vol. XVI.
individual holders of the notes, but only to supply so much to the funds of the bank.
against BATEMAN. In Error.
Tuesday, Nov. 24th.
William Lester's Case.
The 50 G. 3.
CAMPBELL moved for a habeas corpus on the bec. 49., which requires the half of William Lester, late overseer of the poor
of churchwardens and overseers
the parish of Paddington, who was detained in custody, to submit their under a warrant of commitment signed by two justices, accounts to two justices at spe- for not delivering in his accounts to the succeeding cial sessions to be holden with- overseers, within 14 days from the time of their apin the 14 days appointed by pointment.
The warrant of commitment recited the 6.38. for delic appointment of Lester as one of the overseers, and the vering in the
subsequent appointment of two persons to succeed him said account to the succeeding in the office, and recited also the 17. Geo. 2. c. 38. whereoverseers, is not a substitution by churchwardens and overseers are directed, within in lieu of that 14 days from the appointment of their successors, to provision in the 17 G. 2., but is deliver in to their successors a just, true, and perfect cumulative, and if the over- account, &c. to be verified by oath, &c. and that it had seer refuse to deliver in such
been duly proved before them the justices, that Lester account to the had refused to make and yield up to his successors such succeeding overseers uith- account as aforesaid, within the time therein-before menin the 14 days, he may be com. tioned, and limited or appointed for that purpose ; and mitted by two then went on to direct that Lester should be taken into justices for such refusal.
custody, and detained until he should make and yield up such account verified as aforesaid.
It was contended that the 50 Geo. 3. c. 49. which directs the accounts to be submitted to two justices at a special sessions within the 14 days appointed by the former act, was substituted in place of the obligation to deliver them over to the succeeding overseers. By the
50 Geo. 3. the overseers who refuse or neglect to submit the accounts to the justices, are made liable to be committed; if, therefore, they have 14 days allowed them for submitting their accounts to the justices, how can they be required within that time to deliver them over to the succeeding overseers ? The duty imposed by one act is inconsistent with and would interfere with the
Lord ELLENBOROUGH, C. J. The provision in the 50 G. 3. seems rather to apply to the manner of examining the accounts when yielded, leaving the accounts still, as before, to be delivered over to the succeeding overseers; but they are also within the 14 days to be submitted to the justices for examination. An ulterior means is afforded of investigating them before the justices; the act only means that they shall be exhibited to the justices; it is, therefore, for a different object. It is very expedient that the succeeding overseers should have the accounts delivered in to them immediately from the former overseers, which is the object of the 17 G. 2.; then the 50 G. 3. directs that the account so to be de. livered shall be submitted to the justices to be examined and approved by them; that, therefore, is manifestly cumulative.
LE BLANC, J. The church wardens and overseers are to deliver in to the succeeding overseers their accounts verified on oath before one or more justices, who are to sign and attest the same; that is provided for by the 17 G. 2. By the subsequent act the accounts are to be submitted to two or more justices at a special sessions; and power is given to them to examine and approve cc 2