СНАР. ІІІ. Instance of considerations. tion, are capable of expressing either a past or a concurrent consideration, that construction will be adopted which makes the instrument valid. (a) Where the defendant gave the following guarantee :— "In consideration of E R and Co. giving credit to D J, I hereby engage to be responsible, and to pay any sum, not exceeding £120, due to the said E R and Co. by the said DJ," it was held that the guarantee was good and binding, the words "giving credit" being equally applicable to future as to past advances. (b) If the guarantee does not import that it is to attach upon future advances, and refers, in fact, to past transactions only, without showing a future consideration, it is void.(c) Where the defendant gave the following guarantee:"I hereby guarantee Mr. J J's account with you for wines and spirits to the amount of £100," it was held that the guarantee was for an existing account, and not for a future supply.(d) Although it is no longer necessary that the consideration should appear on the face of the guarantee, yet, as a consideration must exist, it will be convenient to refer to some of the older cases, which turned upon the sufficiency of the consideration. Guarantees for the payment of any goods which the (a) Steele v. Hoe, 14 Q. B. 19 L. J. Q. B. 89. (c) Bell v. Welch, 9 C. B. 154, 19 L. J. C. P. 184; Westhead v. Sproson, 6 H. & N. 728; 30 L. J. Ex. 265. (d) Allnutt v. Ashenden, 6 Sc. (N. R.) 127; and see Boyd v. Moyle, 2 C. B. 644. plaintiff should deliver to A,(a) for the payment of a debt owing by A, if the plaintiff would withdraw a promissory note, (b) give up a security, (c) or stay an action, (d) have been held to be sufficient. So undertakings to see rent paid, (e) to pay for goods ordered by A,(ƒ) and a promise conditional on the plaintiff's accepting a certain offer,(g) have been held to be sufficient. The following memorandums:-"To the amount of £100 be pleased to consider me as a security on J C's account," (h) and, "I undertake to secure to you the payment of any sums you have advanced, or may hereafter advance, to D on his account with you, commencing 1st November, 1831,"(i) have been held not to express a sufficient consideration; and where the defendant wrote as follows:-" As you have a claim on my brother for £5 17s. 9d. for boots and shoes, I hereby undertake to pay the amount within six weeks from this date," it was held that the consideration, viz. forbearance for six weeks, did not appear, and that the guarantee was bad.(k) The words, "debt," "default," or "miscarriage,' (a) Stadt v. Lill, 9 East, 348, S. C. nom.; Stapp v. Lill, 1 Camp. 242; see also Ex parte Gardom, 15 Ves. 286; Price v. Richardson, 15 M. & W. 539. (b) Shortrede v. Cheek, 1 A. & E. 57. (c) Peate v. Dicken, 5 Tyr. 116, 1 C. M. & R. 422. (d) Tanner v. Moore, 9 Q. B. 1. (e) Caballero v. Slater, 14 C. B. 300. miscarriage," (f) Jarvis v. Wilkins, 7 M. & W. 410. (g) Powers v. Fowler, 4 E. & B. 511. (h) Jenkins v. Reynolds, 6 Moo. 86; 3 Brod. & B. 14. (i) Raikes v. Todd, 8 A. & E. 846; and see Cole v. Dyer, 1 Tyr. 304. (k) James v. Williams, 3 Nev. & Man. 196; and see Ellis v. Levy, 1 Sc. 669 n. (a). CHAP. III. Sect. III. Meaning of the Sect. III. CHAP. III. apply (1) to guarantees for an existing debt, (2) to guarantees for future debts, or for future losses, which may be incurred by the acts of a third party, (3) to some past or future default in duty by a third party. (a) Promise must be express and not implied. Promise partly within and partly without statute. The statute, it will be observed, provides that the promise to which it is to be applied shall be "special." It seems, therefore, that implied promises are not within the statute. Where a promise is entire, and is void from the commencement as to part, for not being in writing, the parts being indivisible, no action can be brought on that part of the promise which is not within the statute, but the whole promise is void. Thus, where the defendant, in consideration that the plaintiff would not distrain for rent in arrear, verbally promised to pay him, not only the rent due, but the rent due at the ensuing quarter day, it was held that the promise to pay the accruing rent was a promise founded on a new consideration, distinct from the demand which the plaintiff had against the tenant, and, therefore, void under the statute; and that the promise being entire, and in the commencement void in part, was void altogether, and that the plaintiff, therefore, could not recover from the defendant the rent due at the ensuing quarter day.(b) (a) See De Colyar on Guarantees, pp. 45-49; and Kirkham v. Marter, 2 B. & Ald, 613; Mount. stephen v. Lakeman, L. R. 7 Q. B. 197, (b) Thomas v. Williams, 10 B. & C, 664; and see Lexington v. Clarke, 2 Vent, 223; Chater v. Beckett, 7 T. R. 201; Mechelen v. Wallace, 7 A. & E. 49, 2 N. & P. 224; Head v. Baldrey, 6 A, & E. 459, 2 N. & P. 217; Hodgson v. Johnson, E. B. & E. 685, 28 L. J. Q. B. 88; Vaughan v. Hancock, 3 C. B. 766; Harman v, Reeve, 18 C. B. 587; Cooke v. Tombs, Ans. 420; Lea v. Barber, ib. 425, n.; Corder v. Drakeford, 3 Taunt. 382; Neal v. Viney, 1 Camp. 471. Where, however, the promise is divisible, an action may be brought upon that part which is not within the statute. In Wood v. Benson, (a) the following guarantee was given: "I, the undersigned, do hereby engage to pay the directors of the Manchester Gas Works, or their collector, for all the gas which may be consumed in the Minor Theatre, and by the lamps outside the theatre, during the time it is occupied by my brother-in-law Mr. Neville; and I do also engage to pay for all arrears which may be now due." It was held that the agree ment was void as to the arrears, but that the amount of the gas supplied might be recovered. (b) CHAP. III. Promise A promise to give a guarantee is required to be in Promise to writing as much as a guarantee itself. (c) give guarantee. Promise to provide a guarantee not within A promise to procure a guarantee from a third person is not within the statute. This was decided in the case of Bushel v. Beavan.(d) There the plaintiffs, the owners of the statute. a ship hired on a charter-party by H. Semphill, refused to let her sail till certain disputes about the freight between them and H. Semphill were settled by H. Semphill's giving security, whereupon the defendant, in consideration that plaintiffs would let H. Semphill sail without giving security, undertook to get P. Macqueen to sign the following guarantee: "Whereas H. Semphill has hired your ship for six months from the 12th July, 1830, and such longer time as his intended voyage may require, and has paid or secured the freight for six months from 93. (a) 2 Cr. & J. 94, 2 Tyr. (b) See also Earl of Falmouth v. Thomas, 1 Cr. & M. (c) Mallett v. Bateman, L. R. 1 C. P. 170. (d) 1 Bing. (N. C.) 103, 4 Moo. & S. 622. CHAP. III. Offer to guarantee till accepted. the 20th August, 1830, and is about to leave England, I guarantee the payment of freight which shall accrue for any portion of the voyage after the said six months.” It was held that the guarantee was within the statute, but that the undertaking to procure P. Macqueen's sig nature was not. A mere offer to guarantee is not sufficient to bind the does not bind person making it, until he has notice that it is regarded as a guarantee and is accepted, or until he has consented to its being considered as conclusive. Thus, where the defendant gave the following letter to A (to whose house the plaintiffs had declined to furnish goods on their credit alone): "I understand A and Co. have given you an order for rigging, &c., which will amount to about £4,000. I can assure you from what I know of D A's honour and probity, you will be perfectly safe in crediting them to that amount, indeed I have no objection to guarantee you against any loss from giving them this credit;" and this letter was handed over by A to the plaintiffs, with a guarantee from another house which they required in addition, and the goods were thereupon furnished; the letter was considered not to amount to a guarantee, there being no notice given by the plaintiffs to the defendant that they accepted it as such, or any consent of the defendant that it should be a conclusive guarantee.(a) Offer may be withdrawn. Until an offer to guarantee has been accepted, it may be revoked by the person who has made it. In Offord v. (a) M'Iver v. Richardson, 1 M. & Sel, 557; and see Coleman v. Upcot, 5 Vin. 527; Bird v. Blosse, 2 Vent. 361; Hodgson v. Hutchinson, 5 Vin. 522; Gaunt v. Hill, 1 Stark, 10; Symmons v. Want, 2 Stark, 371; Mozley v. Tinkler, 1 C. M. & R. 692, 5 Tyr. 416; Newport v. Spivey, 7 L. T. (N. S.) 328. |