Bainbridge v Wade
| Jurisdiction | England & Wales |
| Judgment Date | 15 November 1850 |
| Date | 15 November 1850 |
| Court | Court of the Queen's Bench |
English Reports Citation: 117 E.R. 808
QUEEN'S BENCH.
S. C. 20 L. J. Q. B. 7; 15 Jur. 572.
808 BAINBRIDCIE V. WADE led. B. M. [89] bainbeidqe against wade. Friday, November 15th, 1850. Declaration in assumpsit alleged : that L. had requested plaintiff to sell and deliver to him gooda in the way of plaintiff's business; and plaintiff had, at L.'s request, consented to do so, provided defendant would guarantee the payment, of which defendant, before the making of the promise after mentioned, had notice: that afterwards, and before L. was indebted to plaintiff for any goods, and when no goods delivered by plaintiff to L. were unpaid for, and no money was due from L. to plaintiff on any account whatever, defendant, by writing addressed to plaintiff, promised in the words following: "I hereby guarantee the payment of any sum or sums of money due to you from " L., "the amount not to exceed at any time the sum of 1001.:" that afterwards plaintiff, confiding, &c., supplied goods to L. for reasonable prices amounting to 1001., and thereby allowed L. to become indebted to him in 1001.; that L. had not paid : breach, that defendant had not paid. On demurrer to the declaration : Held : that the circumstances stated in the declaration might be looked at to explain the meaning of the writing. That the writing, so explained, shewed a good consideration for defendant's promise, namely, the future advances by plaintiff to L., so as to satisfy sect. 4 of the Statute of Frauds, 29 C. 2, c. 3. And, per Lord Campbell C.J., Coleridge and Wightman Js., that this consideration appeared by the writing itself, independently of the other circumstances stated. [S. C. 20 L. J. Q. B. 7; 15 Jur. 572.] Assumpsit. The declaration alleged that, whereas heretofore, and before the making of the guarantie [90] and promise by defendant hereinafter mentioned, to wit Majesty's service, be brought to a more exemplary and speedy punishment than the usual forms of the law will allow : be it therefore enacted," &c. " that it shall be lawful for Her Majesty to make Articles of War for the better government of Her Majesty's forces, which articles shall be judicially taken notice of by all Judges and in all Courts whatsoever;" "provided that no person within the United Kingdom of Great Britain and Ireland, or the British Isles, shall by such Articles of War be subject to be transported as a felon, or to suffer any punishment extending to life or limb, except for crimes which are by this Act expressly made liable to such transportation or to such punishment as aforesaid, or shall be subject with reference to any crimes made punishable by this Act to be punished in any manner which shall not accord with the provisions of this Act." Sect 2. "That all the provisions of this Act shall apply to all persons who are or shall be commissioned or in pay as an officer, or who are or shall be listed or in pay as a non-commissioned officer or soldier, and to all [83] persons employed on the recruiting service receiving pay in respect of such service, and to the officers and soldiers belonging to the forces of the East India Company while such officers or soldiers shall be in any part of the United Kingdom, and to the officers and persons who are or shall be serving and hired to be employed in the Royal Artillery and Field Train, and to master gunners, and gunners," &c. (conductors of stores, officers and persons in the Eoyal Engineers, Sappers and Miners, corps of Military Surveyors and Draftsmen, persons in the Ordnance and Commissariat departments, serving with Her Majesty's forces under the command of a commissioned officer, and storekeepers, &c. employed under the Ordnance, in Jersey, &c., at foreign stations. Sect. 6 and following sections provide for courts martial, their proceedings, sentences, &c. Sect. 19 enables a court martial to sentence to death "any person subject to this Act" who, "at any time during the continuance of this Act," "shall desert Her Majesty's service." Sect. 46 enacts: " That upon reasonable suspicion that a person is a deserter it shall be lawful for any constable, or if no constable can be immediately met with then it shall be lawful for any officer or soldier in Her Majesty's service, to apprehend or cause such suspected person to be apprehended, and to bring or cause him to be brought before any justice living in or near such place, and acting for the county or borough wherein such place is situate, or for the county adjoining such first mentioned county or such borough ; and such justice is hereby authorized and required to inquire lflQ-B.90. BAINBRIDGE V. WADE 809 6th February 1843, one Andrew Little, being the person mentioned in the written promise hereinafter set forth, and described in the said promise by the letters and words " Mr. Andrew Little of Richmond," had applied to and requested plaintiff to sell and deliver to him goods and chattels in the way of his, plaintiff's, business of a whether such suspected person is a deserter, and if it shall appear by the testimony of one or more witnesses, taken upon oath, or by the confession of such suspected person," or by the knowledge of such justice, [stats. 12 & 13 Viet. c. 10, s. 46, and 13 & 14 Viet. c. 5, s. 46, insert the words "or by evidence sufficient to satisfy such justice that there are reasonable grounds for believing"], " that such suspected person ia a deserter, uch justice shall forthwith cause him to be conveyed in civil custody to the hjead quarters or depot of the regiment to which he belongs, if stationed within five miles of the place of apprehension, or if such head quarters or depot shall not be stationed within five miles, then to the nearest or most convenient public prison (other than a military prison set apart under the authority of this Act)," [stat. 13 & 14 Viot. c. 5, s. 46, inserts "or police station legally provided as a lock-up house for temporary confinement of persons taken into custody," and, after the words " whether such prison," the words " or police station " ], " whether such prison be in the county or borough in which such suspected person was apprehended or in which he was committed or not; or if the deserter shall have been apprehended by a party of sokliers of hia own regiment, in charge of a commissioned officer, such justice may deliver him up to such party, unless the officer shall deem it necessary to have the deserter committed to prison for safe custody; [84] and such justice shall transmit an account thereof, in the form prescribed in the schedule annexed to this Act, to the Secretary at War, specifying therein whether such deserter was delivered to his regiment or to the party of his regiment in order for his being taken to the bead quarters or depot of his regiment, or whether sueh deserter was committed to prison, to the end that the person so committed may be removed by an order from the office of the said Secretary at War, and proceeded against according to law ; and such justice shall also send to the Secretary at War a report, stating the names of the persona by whom the deserter was apprehended and secured." Then follow provisions as to payments lo be made to persons acting in the apprehension, &c. Sect. 47 enacts, "That every gaoler or person having the immediate inspection of any public prison, gaol, house of correction, lock-up house, or other place of confinement in any parb of Her Majesty's dominions, ia hereby required to receive and confine every deserter who shall be delivered into his custody by any soldier conveying such deserter under lawful authority, on production of the warrant of the justice of the peace on which such deserter shall have been taken, or some order from the office of the Secretary at War, which order shall continue in force until the deserter shall have arrived at his destination." Sect. 48 enacts "That any recruit who shall desert prior to joining the regiment for which he has enlisted shall, on being apprehended, and committed for such desertion by any justice of the peace upon the testimony of one or more witnesses upon oath, or upon his own confession, be liable to be transferred to any regiment or depot nearest to the place where he shall have been apprehended, or to any other regiment to which Her Majesty may deem it more desirable that he should be transferred : provided always, that all cavalry recruits so committed for desertion shall be transferred to cavalry regiments, and infantry recruits to infantry regiments; and that luch deserters thus transferred shall not be liable to other punishment for the offence, nor to any other penalty, except the forfeiture of their personal bounty, reserving only for them that part of the bounty which is applicable to and required for the provision of necessaries." Sect. 55 enacts, "That every person who shall receive enlisting money, knowing U to be such, from any person employed in the recruiting service, and being an officer, non-commissioned officer, an attested soldier, or an out-pensioner of Chelsea Hospital authorized to enlist recruits, shall be deemed to be enlisted as a soldier in Her Majesty's service, and while he shall remain with the recruiting party shall be entitled to be billeted; and every person who shall enlist any recruit shall first ask the person offering...
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