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wards issued. The defendant continued to hold under that lease, unless it be shewn to have been surrendered, or otherwise put an end to. The document produced in evidence does not refer to a by-gone bargain. "I do hereby attorn," must be understood to mean, I will be considered as now becoming tenant. The latter part of the agreement points to the terms of the new holding. It is said that this shews that the lease was no longer subsisting. The utmost that can be inferred is, that the defendant meant, that if he could have obtained better terms, he would have surrendered the subsisting lease; it does not imply that the lease had been put an end to. If this be an agreement, it requires a stamp. An attornment only puts the party in the same situation as the original laudlord, and gives him no better right. If the landlord is entitled to possession, the party to whom the attornment is made is entitled to possession. By the manner in which these persons are described, you raise the strongest possible inference that they are not parties entitled to receive rent. If they had actual possession, they might have been entitled to receive rent from a party to whom they gave possession. Rogers v. Pitcher, and Gravenor v. Woodhouse, clearly shew the distinction between coming in under a party and attorning; attorning does not prevent your disputing the title. The want of a stamp is a sufficient ground for making this rule absolute. Besides which, the lease had never been put an end to.

HOLROYD, J.-This action cannot be supported. This is not, technically speaking, an attornment. Sequestrators from the Court of Chancery take no estate. They receive money, to be applied as the Court shall direct. It is not a surrender, because sequestrators are not entitled to take a surrender. The lessee would, notwithstanding, remain bound to hold under the original landlord. The agreement also appears to be void for want of a consideration.

1828.

CORNISH

V.

SEARELL.

1828.

CORNISH

V.

SEARELL.

In Fronten v. Small (a), it was held that a lease made by the landlord's attorney, in his own name, was void.

་་་

LITTLEDALE, J.-I was disposed at the trial to think that this instrument required a stamp, and upon further consideration I am satisfied that it ought to have been stamped. It is not properly an attornment, but a new agreement, upon terms to be afterwards fixed; but it was evidence of a contract. Besides which, the lease would prevent the plaintiffs recovering in this form of action. This is not like the case of a tenant disputing his landlord's title. The plaintiff does not attorn to them as simple individuals. A surrender cannot be made to sequestrators; it must be to the lessor, or to a party legally entitled under him. And though the plaintiffs may bring a new action upon procuring the instrument to be stamped, that will not get rid of the objections.

Rule absolute to enter a nonsuit.

(a) 1 Stra. 705; 2 Lord Raym. 1418; and see Berkeley v. Hardy, 8 D. & R. 102; 5 B. & C. 356.

573 34.

PAYNE V. WILSON (b).

"A. having, at ASSUMPSIT. The declaration stated that Vaux had

my request,

consented to given a cognovit to the plaintiff for a debt of 1037.; and stay proceed that Vaux, having made default in payment at the stipulated ings against B., I, C., do day of payment, plaintiff was about to take proceedings hereby, in con- thereon against Vaur; and that thereupon, in consideration that the plaintiff, at the request of the defendant (c), would

thereof, pro

mise to pay 50%. on account, on the first day of April next,

and the further

(b) This and the following case were argued in Michaelmas term.
(c) The consideration being executory, the request seems to be imma

terial.

sum of 537. within four months next ensuing the first day of April." A declaration on this agreement, stating that in consideration that A., at the request of C., would consent to suspend proceedings against B., C. promised to pay to A. 301., &c., and that 4. did suspend proceedings against B., discloses a sufficient consideration, avers a sufficient performance, and is supported by the terms of the agreement.

consent to suspend proceedings against Vaux, defendant undertook to pay the plaintiff 50%. on account of the debt, on the 1st day of April then next, and the further sum of 531. within four months next ensuing the said 1st day of April; and that the plaintiff relying, &c. did suspend all further proceedings against Vaur on the cognovit, whereof defendant had notice. Plea, non assumpsit. At the trial, before Lord Tenterden, C. J., at the sittings at Westminster after Hilary term, 1827 (a), the following paper, signed by defendant, was given in evidence :-" Mr. R. Payne, having at my instance and request consented to suspend proceedings against the above-named defendant on the cognovit signed by him in this cause, and given for payment of the debt this day, I do hereby, in consideration thereof," personally undertake and promise to pay to the plaintiff the sum of 50l. on account of the said debt, on the 1st day of April now next, and the further sum of 5sl. within four months next ensuing the 1st day of April." Upon this evidence it was contended that the plaintiff ought to be nonsuited on the ground that he had proved an executed consideration, whereas the consideration stated in the declaration was executory. The learned Judge overruled the objection, but gave defendant leave to move to enter a nonsuit. In the following term Campbell obtained a rule to enter a nonsuit on the point reserved, and also for arresting the judgment upon the insufficiency of the consideration and the allegation of its performance.

Scarlett, A. G., and Wightman now shewed cause. The declaration discloses a sufficient consideration; Boehm v, Campbell (b), Pace v. Marsh (c). The request to suspend, stated in the declaration, is recited in the agreement, and is therefore evidenced by it.

(a) Counsel for the plaintiff, Scarlett and Wightman; for the defendant, Campbell.

(b) 3 J. B. Moore, 15; 8 Taunt..

679.

(c) 8 J. B. Moore, 59; 1 Bingh.

1828.

PAYNE

v.

WILSON.

13**

1828.

PAYNE

v.

WILSON.

Campbell, contra. The distinction between executory and executed considerations is in fact a distinction between conditional and absolute promises. Here the declaration stated the consideration to be that plaintiff would consent, and the proof was that he had already consented. Then there are two objections in arrest of judgment; first, no sufficient consideration is stated in the declaration. The consideration alleged is, that plaintiff "would consent to suspend." This consideration might be performed by forbearing for an instant; but such a forbearance would be clearly insufficient as a consent; secondly, supposing the consent to be good, the declaration does not shew a performance. The allegation is, that the plaintiff "did suspend." It is not alleged that he consented to suspend. [Littledale, J. Actual suspension is greater than an agreement to suspend.]

Lord TENTERDEN, C. J.-1 think the paper was evidence of the contract stated in the declaration. In arrest of judgment it is said that no sufficient consideration is shewn (a),

(a) It is not necessary that an executory consideration should be binding on the promisee; provided the liability of the promisor be made to depend upon the performance of the consideration, that performance may be optional on the part of the promisee. Thus in Gardom, ex parte, 15 Ves. 286, a guarantee was held to be binding in the following form:-" We agree and engage to guarantee for what twist Thomas Tapp may purchase from you from the 28th ult. to the 1st January, 1808," signed "Hargreave Goodwin." It is true that in the report of that case this broad ground of distinction between ex parte Gardom and Wain v. Warlters, (5 East, 10,) does not appear to have been adverted to; and on the contrary Lord Eldon is represented to have said, "Until

the case of Wain v. Warlters was
cited some time ago, I had always
taken the law to be clear, that if
a man agreed in writing to pay
the debt of another, it was not
necessary that the consideration
should appear upon the face of
the writing. That case has deter-
mined two points; first, that a
consideration is necessary; se-
condly, that it must appear upon
the writing. It is excessively dif-
ficult to distinguish this from that
case; as for this engagement to be
answerable for any twist which
the petitioners should supply to
another person, there is no consi-
deration unless, as it may be
proved by parol evidence, that
they did agree to furnish twist."
But in Stapp (or Stadt) v. Lill,
2 Campb. 242, "I guarantee the
payment of
any goods which J. S.

711

but the consideration implies a promise to suspend pro

delivers to J. N.," was held by Lord Ellenborough to contain a sufficient consideration, though no cross action would lie for the nondelivery of the goods; his lordship being of opinion that when the delivery took place the consideration attached; and the Court of K. B. were satisfied that the direction was right, 9 East, 349. S. P. admitted, Warrington v. Furber, 6 Esp. N. P. C. 89. In all these three cases this conditional or springing consideration appeared upon the instrument itself; the decision in them all seems therefore to be perfectly reconcilable to Wain v. Warlters, (confirmed by Saunders v. Wakefield, 4 B. & A. 595,) which merely decided that the consideration of the promise, as well as the promise itself, formed part of the agreement mentioned in the fourth section of the statute of frauds, and must be stated in the written instrument. The necessity for a consideration to support any promise not under seal had been previously established in Rann v. Hughes, 7 T. R. 350, n., 4 Bro. P. C. 27. In Minet, ex parte, 14 Ves. 190, a guarantee was given to this effect: "We promise to guarantee to Gurney and Co. the repayment to them on one month's notice in writing of such sum or sums of money as they have already lent, or shall hereafter lend to A. B. not exceeding, &c., besides all legal interest." The parties who signed this instrument became bankrupts before any notice had been given; on which ground only the proof of debt upon the guarantee was ex

punged. In that case Lord Eldon appears to have said, "With respect to the other point (in the Statute of Frauds) there is a variety of authorities contradicting the case (Wain v. Warlters) in the Court of King's Bench, which is a most important case with reference to its consequences; for the undertaking of one man for the debt of another does not require a consideration moving between them." If by this latter expression was meant that it is not necessary that the promisor should derive any advantage to himself from the consideration, it is not at variance with the decision in Wain v. Warlters, long before which it had been settled that risk, detriment, or inconvenience to the promisee was as good a consideration as benefit to the promisor. It appears, however, to be questionable whether the conditional or springing consideration in Minet, ex parte, would be sufficient to support that part of the promise which related to prior advances. It seems unreasonable to say that Gurney and Co. could have sued Minet for the amount of advances already made to A. B. although at the moment of accepting the guarantee they might have determined not to make any further advance.

The following note is appended to the case of Gardom, ex parte, in the first American edition of Vesey, junior:-"In New York it has been decided, that the consideration as well as the promise must be in writing. Sears v. Brink, 3 Johns. Rep. 210. But if

1828.

PAYNE

2.

WILSON.

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