Wain and another against Warlters
| Jurisdiction | England & Wales |
| Judgment Date | 19 April 1804 |
| Date | 19 April 1804 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 972
IN THE COURT OF KING'S BENCH.
Referred to, Hemming v. Perry, 1828, 2 Moo, & P. 383. Applied, Bainbridge v. Wade, 1850, 16 Q. B. 98. Commented on, Holmes v. Mitchell, 1859, 7 C. B. N. S. 370. Referred to, Malpas v. London and South Western Railway, 1866, L. R. 1 C. P. 339. Adopted, In re Frost [1898]' 2 Ch. 561; [1899], 2 Ch. 207.
[10] wain and another against waelters. Thursday, April 19th, 1804. No person can, by the Statute of Frauds, be charged upon any promise to pay the debt of another, unless the agreement upon which the action is brought, or some note or memorandum thereof, be in writing; by which word agreement must be understood the consideration for the promise as well as the promise itself. And therefore where one promised in writing to pay the debt of a third person, without stating on what consideration; it was holden that parol evidence of the consideration was inadmissible by the Statute of Frauds; and consequently such promise appearing to be without consideration upon the face of the written engagement, it was nudum pactum and gave no cause of action. [Referred to, Hemming v. Perry, 1828, 2 Moo. & P. 383. Applied, Bainbridge v. Wade, 1850, 16 Q. B. 98. Commented on, Holmes v. Mitchell, 1859, 7 C. B. N. S. 370. Referred to, Malpas v. London and South Western Railway, 1866, L. R. 1 C, P. 339. Adopted, In re Frost [1898], 2 Ch. 561; [1899], 2 Ch. 207.] The plaintiffs declared that at the time of making the promise after mentioned they were the indorsees and holders of a bill of exchange, dated the 14th of February 1803, drawn by one W. Gore upon and accepted by one J. Hall, whereby Gore requested Hall, seventy days after date, to pay to his, Gore's, order, 561. 16s. 6d.; which bill of exchange Gore had before then indorsed to the plaintiffs, and which sum in the bill mentioned was at the time of making the promise by the defendant due and unpaid. And thereupon the plaintiffs, before and at the time of making the said promise by the defendant, had retained one A. as their attorney to sue Gore and Hall respectively for the recovery of the said sum so due, &c. whereof the defendant, at the time of his promise, &c. had notice. And thereupon, on the 30th of April 1803, at, &c. in, 5 EAST, 11. WAIN V. WARLTEES 973 consideration of the premises, and that the plaintiffs, at the instance of the defendant, would forbear to proceed for the recovery of the said 561. 16s. 6d. he, the defendant, undertook and promised the plaintiffs to pay them by half past four o'clock on that day 561. and the expencesi which had then been incurred by them on the said bill. The plaintiffs then averred that they did, within a reasonable time after the defendant's promise, stay all proceedings for the recovery of the said debt, and have hitherto forborne to proceed for the recovery thereof; and that the expences by them incurred on the said bill at the time of making the promise by the defendant, and in respect of their having so retained the-said A., and .on account of his having, before the defendant's said promise, [11] drawn and ingrossed certain writs called special capias, against Gore and Hall respectively on the said bill, amounted to 201., of which the defendant hacTnotiee; yet the defendant did not at half past four o'clock on that day, &c. nor at any time before or since, pay the said sum of 561. and the said expences incurred, &c. There was another special count, charging that the reasonable expences -incurred on the bill were so much, which the defendant had refused to pay. Arid the common money counts. In support of the undertaking laid in the declaration the plaintiffs, at the trial at Guildhall, produced the written engagement signed by the defendant, which was in these words; " Messrs. Wain and Co., I will engage to pay you by \ past 4 this day fifty-six pou-nds arid expences on bill that amount on Hall. (Signed) Jno. Warlters, (and dated) No. 2, Cornhill, April 30th, 1803." Whereupon it was objected, on the part of the defendant, that though the promise, which was to pay the debt of another, were in writing, as required by the Statute of Frauds, yet that it did not express the consideration of the defendant's promise, which was also required by the statute to be in writing; and that this...
To continue reading
Request your trial
-
Forth and Others v Stanton, Widow
...of the promise ; and therefore the misideration of the promise must be in writing as well as the promise itself, otherwise it is void. 5 East, 10, Wain v. Warlters.(d) We have already seen, that a promise by an executor, &c. in (d) The doctrine here laid down was very much doubted in severa......
-
Bainbridge v Wade
...it is void : but it is enough if, on the face of the instrument, we can see what the real consideration is. After Wain v. Warlters (5 East, 10), the case of Stadt v. Lill (9 East, 348; 1 Camp. 242), followed, which has always been considered an authority for the principle that the Statute o......
-
Sweet v Lee, Esq
...taken upon the existence of that contract (a)2. The payments [463] were made upon a consideration which (a)1 Vide Warn v. Warlters, 5 East, 10; Sawnders v. Wakefield, 4 B. & Aid. 595; Jenkins v. Eeynolds, 3 B. & B. 14; Russell v. Mosely, ib. 211; James v. Williams, 3 N. & M. 196; Shortrede ......
-
Salter v Woolams and Anothers
...476; Drake v. Mitchell, 3 East, 251; Bird v. Gammon, 3 New Cases, 883, 5 Scott, N. E. 213. (of Supra, 647 (a). (b) Vide Warn v. Warlters, 5 East, 10; Saunders v. Wakefield, 4 B. & Aid. 595; Jenkins v. Reynolds, 3 Bro. & B. 14, 6 B. Moore, 86; Russell v. Moseley, B. & B. 211, 6 Moore, 521; P......
-
Act 339, HB 442
...29.49 feet); thence 8 North 00 degrees 53’26" West, 895.67 feet to the Point of 9 Beginning, all in Section 19, Township 16 South, Range 5 East. 10 In Section 32, Township 16 South, Range 5 commence at the Northwest corner of said Section 32; thence 12 run southerly along the West line of s......