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1828. ceedings until the 1st of April. After verdict (a) I think

there is a sufficient allegation of performance. PAYNE

V. WILSON.

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 agreemnent. the promise be under seal, that of Rep. 139; and Chief Justice Smith itself imports a consideration. Li- has stated the reasons for his unvington v. Tremper, 4 Johns. Rep. willingness to consider the case as 416. And however sufficient the authority, in a very learned opiconsideration, the promise must nion, which is inserted in Mr. be in writing. Jackson v. Rayner, Day's edition of East's Reps. vol. 12 Johns. Rep. 291. But where 5, p. 20. In New Jersey, the Suthe guarantee or promise to pay preme Court have lately decided the debt of another is made at the that it is not necessary that the same time with the contract to consideration of a written underwhich it is collateral, it is incor- taking to pay the debt of another porated with the original transac- should be expressed in or appear tion, and becomes an essential upon the alleged agreement. Buckbranch of it; the whole is one sin- ley v. Beardsley, 2 South. Rep. gle bargain, and the want of con- 570. One of the Judges, however, sideration as between the plaintiff dissented, upon the ground that and the guaranteeing party cannot

the written memorandum did not be alleged. Leonard v. Vreden- contain as well the consideration burg, 8 Johns. Rep. 22, (2d edit.) as the promise. In Pennsylvania, and the cases cited in the reporter's the act of assembly " for prevennote. Wain v. Warlters, 5 East tion of frauds and perjuries,” conRep. 10, is recognized in Sears v. tains no provisions upon the subBrink, as having given a sound ject of a proinise or agreement to construction to the statute; but answer for the debt of another. In the authority of both those cases Virginia the statute requires only has been questioned by Chancellor that the promise should be in writKent, 8 Johns. Rep. 29. Lord ing. Violett v. Patton, 5 Cranch, Eldon, in ex parte Minet, 14 Ves. 142. The Court, however, said, jun. 190, expressed a decided opi- their opinion in that case was not nion against Wain v. Warlters, determined by the circumstance, saying, “ there was a variety of there being a consideration excases directly contradicting it." pressed in the assignment." Chief Justice Parsons and Chief (a) Vide unte, 285. Justice Parker bave in effect over- (b) See Mann. N. P. Digest. ruled it, Hunt v. aldams, 5 Mass. AGREEMENT, 1.-ASSUMPSIT, 1. Rep. 360, Adams v. Beun, 12 Mass. -VARIANCE, 41.

1828.

PAYNE

WILSON.

LITTLEDALE, J. There is no variance here. There is a clear distinction between considerations executed and considerations executory. In Com. Dig. (Actions on the ease 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 barmless; for prompt payment of the rent is a continuing consideration when he remains in possession (6).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.

Rule discharged.

(a) Referring to 1 Roll. Abr. 13, line 35; 11, line 40,

(5) Referring to Cro. Eliz. 94; 1 Leon. 102.

(c) Ante, 285.

Doe on the Demise of Lord SUFFIELD 0. PRESTON. EJECTMENT for nine acres of land in Felmingham,

Commission

ers are emNorfolk, tried before Alexander, C. B., at the last Norwich powered by

an inclosure 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 ex

change for folk”,(6) certain commissioners were empowered to set other lands,

provided such (a) Counsel for the plaintiff, Storks, Serjt., and Robinson ; for the exchange be

made with the defendant, B. Andrews.

consent of the (6) 48 Geo. 3, c. 43, (local and personal, not printed).

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

D. 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 allotinents 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 20001, 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 2000l. 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

1828.

DoE

V.

Preston,

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.

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