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1828.

CORNISH

v. SEARELL.

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 landlord, 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

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.

Payne v. WILSON (6). 33 34 “ A. baving, at' ASSUMPSIT. The declaration stated that Vaux bad consented io given a cognovit to the plaintiff for a debt of 1031,; and stay proceed- that Vaux, having made default in payment at the stipulated ings against B., 1, C., do day of payment, plaintiff was about to take proceedings hereby, in con- thereon against Vaur; and that thereupon, in consideration sideration thereof, pro

that the plaintiff, at the request of the defendant (e), would mise to pay 501. on ac

() This and the following case were argued in Michaelmas term. count, on the first day of

(c) The consideration being executory, the request seems to be immaApril next,

terial. and the further sum of 531, 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 Å. 301., &c., and that A. did suspend proceedings against B., discloses a sufficient consideration, avers a sufficient performance, and is supported by the terms o: the agreement.

1828.

Payne

v. Wilson.

consent to suspend proceedings against Vaur, defendant undertook to pay the plaintiff 501. 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 Ist day of April; and that the plaintiff relying, &c. did suspend all further proceedings against Vuur 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 501. 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 (6), 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.

(6) 3 J. B. Moore, 15; 8 Taunt.. 679.

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

1828.

PAYNE

v. WILSON.

Campbell, contrà. 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. Theu 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.-I 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), but the consideration implies a promise to suspend pro

(a) It is not necessary that an the case of Wain v. Warllers was executory consideration should be cited some time ago, I had always binding on the promisee; provided taken the law to be clear, that if the liability of the promisor be a man agreed in writing to pay made to depend upon the perform- the debt of another, it was not ance of the consideration, that necessary that the consideration performance may be optional on should appear upon the face of the part of the promisee. Thus the writing. That case has deterin Gardom, er parte, 15 Ves. 286, mined two points; first, that a a guarantee was held to be bind.

consideration is necessary; seing in the following form:-“We condly, that it must appear upon agree and engage to guarantee for the writing. It is excessively difwhat twist Thomas Tapp may pur

ficult to distinguish this from that chase from you from the 28th ult. case; as for this engagement to be to the 1st January, 1808," signed answerable for any twist which “ Hargreave Goodwin.It is true the petitioners should supply to that in the report of that case this another person, there is no consibroad ground of distinction be- deration unless, as it may be tween ex parte Gardom and Wain proved by parol evidence, that v. Warlters, (5 East, 10,) does not they did agree to furnish twist.” appear to have been adverted to; But in Stapp (or Stadt) v. Lill, and on the contrary Lord Eldon is 2 Campb. 212, “ I guarantee the l'epresented to have said, “Until payment of any goods which J. S.

1828.

PAYNE

v. Wilson.

delivers to J. N.," was held by punged. In that case Lord Eldon Lord Ellenborough to contain a appears to have said, “With resufficient consideration, though no spect to the other point in the cross action would lie for the non- Statute of Frauds) there is a vadelivery of the goods; his lordship riety of authorities contradicting being of opinion that when the the case (Wain v. Wurlters) in the delivery took place the considera- Court of King's Bench, which is a tion attached; and the Court of most important case with referK. B. were satisfied that the direc- ence to its consequences; for the Lion was right, 9 East, 349. S. P. undertaking of one man for the admitted, Warrington v. Furber, debt of another does not require 6 Esp. N. P. C. 89. In all these à consideration moving between three cases this conditional or them.” If by this latter expresspringing consideration appeared sion was meant that it is not neupon the instrument itself; the

cessary that the promisor should decision in them all seems there- derive any advantage to himself fore to be perfectly reconcilable from the consideration, it is not to Wain v. Wurlters,(confirıned by at variance with the decision in Saunders v.

Wakefield, 4 B. & A. Wain v. Warlters, long before 595,) which merely decided that which it had been settled that the consideration of the promise, risk, detriment, or inconvenience as well as the promise itself, to the promisee was as good a formed part of the agreement consideration as benefit to the mentioned in the fourth section of promisor. It appears, however, to the statute of frauds, and must be be questionable whether the constated in the written instrument. ditional or springing consideration The necessity for a consideration in Minet, ex parte, would be suffito support any promise not under cient to support that part of the seal had been previously esta- promise wbich related to prior blished in Rann v. Hughes, 7 T. R. advances. It seems unreasonable 350, n., 4 Bro.P.C. 27. In Minet, to say that Gurney and Co. could ex parte, 14 Ves. 190, a guarantee have sued Minet for the amount was given to this effect: “We pro- of advances already made to A. B. mise to guarantee to Gurney and although at the moment of acceptCo. the repayment to them on one ing the guarantee they might have month's notice in writing of such determined not to make any fursum or sums of money as they ther advance. have already lent, or shall here- The following note is appended after lend to A, B. not exceeding, to the case of Gardom, er parte, &c., besides all legal interest." in the first American edition of The parties who signed this instru- Vesey, junior :-“In New York ment became bankrupts before it has been decided, that the any notice had been given; on consideration as well as the prowhich ground only the proof of mise must be in writing. Sears v. debt upon the guarantee was ex- Brink, 3 Johns. Rep. 210. But if

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