1828. PAYNE v. WILSON. ceedings until the 1st of April. After verdict (a) I think there is a sufficient allegation of performance. ་་ ་་ BAYLEY, J.-I am of opinion that there is here no variance. Consent to suspend, means that he would suspend. The consent to suspend is, however, not binding (6). The agreement was, that he would suspend until the 1st of April, and after verdict it must be taken that he suspended the proceedings according to that agreement. the promise be under seal, that of itself imports a consideration. Livington v. Tremper, 4 Johns. Rep. 416. And however sufficient the consideration, the promise must be in writing. Jackson v. Rayner, 12 Johns. Rep. 291. But where the guarantee or promise to pay the debt of another is made at the same time with the contract to which it is collateral, it is incorporated with the original transaction, and becomes an essential branch of it; the whole is one single bargain, and the want of consideration as between the plaintiff and the guaranteeing party cannot be alleged. Leonard v. Vredenburg, 8 Johns. Rep. 22, (2d edit.) and the cases cited in the reporter's Wain v. Warlters, 5 East Rep. 10, is recognized in Sears v. Brink, as having given a sound construction to the statute; but the authority of both those cases has been questioned by Chancellor Kent, 8 Johns. Rep. 29. Lord Eldon, in ex parte Minet, 14 Ves. jun. 190, expressed a decided opinion against Wain v. Warlters, saying, "there was a variety of cases directly contradicting it." Chief Justice Pursons and Chief Justice Parker have in effect overruled it, Hunt v. Adams, 5 Mass. Rep. 360, Adams v. Beun, 12 Mass. note. Rep. 139; and Chief Justice Smith has stated the reasons for his unwillingness to consider the case as authority, in a very learned opinion, which is inserted in Mr. Day's edition of East's Reps. vol. 5, p. 20. In New Jersey, the Supreme Court have lately decided that it is not necessary that the consideration of a written undertaking to pay the debt of another should be expressed in or appear upon the alleged agreement. Buckley v. Beardsley, 2 South. Rep. 570. One of the Judges, however, dissented, upon the ground that the written memorandum did not contain as well the consideration as the promise. In Pennsylvania, the act of assembly "for prevention of frauds and perjuries," contains no provisions upon the subject of a promise or agreement to answer for the debt of another. In Virginia the statute requires only that the promise should be in writing. Violett v. Patton, 5 Cranch, 142. The Court, however, said, their opinion in that case was not determined by the circumstance, there being a consideration expressed in the assignment." (a) Vide ante, 285. (b) See Mann. N. P. Digest. AGREEMENT, 1.-ASSUMPSIT, 1. -VARIANCE, 41. A LITTLEDALE, J.-There is no variance here. There is a clear distinction between considerations executed and considerations executory. In Com. Dig. (Actions on the case upon 'assumpsit, B. 12,) it is said, "an assumpsit lies though the consideration is executed; as in consideration that he had done a thing at my request (a);” and afterwards," so if the consideration is continuing, though the act be executed; as in consideration that the lessee now in possession had paid his rent very well, to save him harmless; for prompt payment of the rent is a continuing consideration when he remains in possession (b)." Now, if this be a continuing consideration, the plaintiff might in his declaration state the consideration to be either that he had suspended, or that he had consented to suspend. After verdict (c) it may be taken that plaintiff suspended absolutely or for a reasonable time. The allegation that the defendant suspended is stronger than that he consented to suspend. (a) Referring to 1 Roll. Abr. 13, line 35; 11, line 40. Rule discharged. (b) Referring to Cro. Eliz. 94; 1 Leon. 102. (c) Ante, 285. 1828. PAYNE บ. WILSON. DOE on the Demise of Lord SUFFIELD . PRESTON. EJECTMENT for nine acres of land in Felmingham, Commission ers are em an inclosure Norfolk, tried before Alexander, C. B., at the last Norwich powered by assizes (a). By " an act for inclosing lands in the parishes act to award of North Walsham and Felmingham, in the county of Nor- lands in exchange for folk", (b) certain commissioners were empowered to set other lands, provided such exchange be (a) Counsel for the plaintiff, Storks, Serjt., and Robinson; for the defendant, B. Andrews. (b) 48 Geo. 3, c. 43, (local and personal, not printed). made with the consent of the respective owners; and to award lands to persons who should agree to purchase the interest of any proprietor of lands directed to be enclosed. An award that A. shall receive certain lands from B. in exchange for certain lands of A., and for 2,000l. to be paid by A. to B. is good, and requires no ad valorem stamp. 1828. DOE 2. PRESTON. out, allot, and award any lands, &c. within the parishes of North Walsham and Felmingham, or either of them, in lieu of or in exchange for any other lands, &c. within the said respective parishes or any adjoining parish, provided that all such exchanges were ascertained and specified in the award of the commissioners, and were made with the consent of the owner or owners of the lands so exchanged, and whether such owners should be seised in fee simple or fee tail, &c., and to make allotments to purchasers in cases where persons had sold or agreed to sell, or should, at any time before the execution of the award of the commissioners, sell or agree to sell their interest in the lands directed to be inclosed. The nine acres in question, and certain lands in the adjoining parish of Suffield, had originally belonged to the defendant, who, in November, 1813, after the passing of the act, agreed with the lessor of the plaintiff that the latter should have the defendant's lands in Felmingham and Suffield, and that he the defendant should have the lessor of the plaintiff's lands in Felmingham, and receive 2000l. after the commissioners should have made their award. The commissioners awarded the lands in question and the defendant's land in Suffield, to the lessor of the plaintiff, in exchange for his land in Felmingham and 20007. It was objected on the part of the defendant, that the commissioners had no power of awarding any exchange, except of land for land of equal value, and that if the award were within the authority created by the act, it would amount to a sale pro tanto, and require an ad valorem stamp. These objections being overruled by the learned Judge, the plaintiff obtained a verdict. Tindul, S. G., now moved for a new trial, and renewed the two objections taken at the trial. The commissioners exceeded their authority. The act authorizes an exchange where the parties have a less estate than a fee, and enables such parties to borrow money upon the fee, but it goes no further. The authority is "to sell the lands directed to be inclosed." If the award conveys a title to the land, it ought to be properly stamped. [Lord Tenterden, C. J. I know of no instance of putting an ad valorem stamp upon an award. Bayley, J. Was the agreement stamped?] The plaintiff did not rely upon the agreement. The Lord Chief Baron said, that it did not lie in the mouth of the defendant to make the objection, though an heir might. [Bayley, J. The ad valorem stamp is imposed by statute on the conveyance.] Lord TENTERDEN, C. J.-There is no weight in either objection. The commissioners had authority to award land in exchange for land, or, in the case of a sale, for money. Here they have awarded land partly for land and partly for money. An award stamp was sufficient. Rule refused. |