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1822.

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the plaintiffs a promissory note, to become payable, with interest, at Lady-day, 1893. It was then submitted, that this correspondence was sufficient evidence of forbearance by the plaintiffs to Wilson, as well as the consideration for a promise to pay the debt of another, so as to bring the case within the fourth section of the statute of frauds.

His Lordship was of that opinion, and the jury accordingly found a verdict for the plaintiffs, damages 1001. but leave was given the defendant to move to set it aside, and that a nonsuit might be entered, in case the Court should be of opinion that the plaintiffs were not entitled to recover.

Mr. Serjeant Lawes now moved accordingly, and submitted, that the guarantie on which the action was founded, was equally destitute of a consideration upon the face of it, as that in the case of Wain v. Warlters (a); and that it merely amounted to a promissory note to pay at the expiration of two years from its date, if Wilson did not satisfy the debt due from him to Goodwin in the mean time. An action might have been maintained against Wilson before the expiration of the two years, as it appears from the defendant's letter that the debt was to be paid by instalments, and it is so stated in the declaration; but the guarantie only refers to the specific time at which the defendant is to be called on for payment, vis. at the expiration of two years from its date, without any reference as to the mode of satisfying the debt by Wilson, the principal debtor. The correspondence of the defendant previously and subsequent to the guarantie, cannot be connected with that instrument. The case of Saunderson v. Jackson (6) is inapplicable to

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the present, as it turned on the construction of the seventeenth section of the statute; and there the subsequent letter of the vendor expressly referred to the order for the delivery of the goods. And Boydell v. Drummond (a) is an authority lo shew that the first letter of the defendant cannot be connected with the guarantie, as it does not refer to it; and even if they were coupled together, they would not be sufficient to take the case out of the fourth section of the statute. At all events, there is a variance between the guarantie as set out in the declaration, and that given in evidence at the trial ; as the former imports some contract dehors the guarantie, and founded on an executory consideration; whereas the forbearance to sue Wilson, on which it was founded, had been given by the plaintiffs before the guarantie was executed by the defendant.

Lord Chief Justice DALLAS.—I am of opinion that there is no ground on either of the objections now urged to disturb the verdict found for the plaintiffs at the trial. The only question there was, whether the guarantie was given by the defendant to the plaintiffs in consideration of their forbearance to Wilson. By the first letter, the defendant proposed certain terins to the plaintiffs, which appear to have been accepted by them, in consequence of which the guarantie was given and recognized by the defendant more than a year and half afterwards. The correspondence and guarantie, therefore, must be taken as constituting one agreement or transaction; and more particularly so, as the last letter of the defendant adopts the terms of the guarantie, and recognizes those of the former letter, on which it was founded.

Mr. Justice PARK.-We decided in the late case of

(a) 11 East, 142.

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Jackson v. Lowe (a), that two distinct writings might be connected or taken together, so as to constitute a memorandum within the terms of the statute of frauds; and here the defendant, in his first letter, expressly refers to the terms on which the guarantie was to be given; and at the expiration of a year and a half, he not only referred to it, but offered to give the plaintiffs a fresh security.

Mr. Justice BURROUGH.--I am of opinion that the plaintiffs could not have sued Wilson until the two years had expired from the time the guarantie was given, and that the correspondence of the defendant, coupled with that instrument, must be considered as one transaction."

Mr. Justice RICHARDSON.- The declaration might have been framed on the first letter containing the terms on which the guarantie was to be given, without the assistance of that instrument, as such letter contained a sufficient considération, as well as the terms of the defendant's undertaking; and it does not appear to me to be material whether it were stated in the declaration to be founded on a future or past consideration.

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1822.

Cox, Demandant; INCE, Tenant ; Gill and another,

Vouchees.

Tuesday, June 18th

MR. Serjeant Vaughan moved that the pracipe of the Where the warrant of attorney in this recovery might be amended, vouchees had by striking out the names of the vouchees and substitut- been inserted

by mistake in ing that of the tenant in their stead. He founded his the præcipe of

the warrant of motion on an affidavit, which stated that the names of the attorney, informer had been inserted by mistake; and he referred to stead of that of James, demandant; Williams, tenant; James, vouchee (a), Court allowed

it to be amendwhere the Court allowed the precipe to be amended, as it ed by substitutdid not form an integral part of the warrant of attorney. the latter for

those of the

former. It appearing that the dedimus and other documents were all correct, and that the possession had followed the recovery, the Court

Allowed the amendment (b).

(a) Ante, Vol. I. 130.- -(6) S. P. Dawson, demandant; Stocker, tenant; Brooke, vouchee, 8 Taunt. 226. And see Bird, demandant ; Qrailter, tenant ; l'indal, voychee, 8 Taunt. 556. Edge, demandant; Taylor, tenant; Warren, vouchee, ante, Vol. IV. 514. Allen, demandant; Hesley, tenant; Massey, voucheo, ante, Vol. VI. 46.

TUCKER, Demandant; FAIRBANK, Tenant ; Bishop and

Wife, Vouchees.

Tuesday, June 18th.

Mr. Serjeant Bosanquet moved that this recovery might A recovery may be amended, by inserting the words “ forty acres of be amended by meadow, and forty acres of pasture,” the land having words meadow been described in the recovery as "forty acres” generally, fore land, alwithout specifying its nature; and in the deed to lead though it was

land generally in the recovery and deed to lead the uses. VOL. VII.

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1822.

the uses it was stated as being thirty-seven acres of land or thereabouts, situate in the parish of Marsden.

TUCKER, Demandant.

On his producing an affidavit by the vouchees, stating that the land consisted of meadow and pasture, both of which were intended to be comprised in the recovery, and that the possession had gone accordingly since it was suffered, the Court

Allowed the amendment (c).

(c) See Phillips, demandant; Field, tenant; Rolfe, vouchee, ante, Vol. V. 98. Howman, demandant ; Orchard, tenant; Burney, vouchee, 8 Taunt. 683.

Wednesday, Doe on the demise of TENNYSON, LL.D. v. LORD YARJune 19th.

BOROUGH.

By the statute This was an action of ejectment, brought to recover 13 Eliz. c. 10,

about s. 3," all leases an acre of land, situate in the parish of Great made by spirit- Grimsby, in the county of Lincoln, called the Old Church ual persons, other than for Yard. The demise was laid on the 19th October, 1815. the term of twenty-one

At the trial of the cause, at the last assizes for the years, or three county of Lincoln, a verdict was found for the plaintiff, upon the accuse subject to the opinion of the Court on the following tomed yearly rent or more shall be reserved,” are void : Held, that in

case:

At the time of the demise mentioned in the declaration, order to render a lease valid

the lessor of the plaintiff had been duly presented, instiunder this statute, it must be tuted, and inducted into the vicarage of the parish and made of land which had been church of Great Grimsby, and was then the lawful vicar previously let, or on which some rent had been before reserved : Therefore, a lease hy a vicar for three lives, of uninclosed and waste land, not proved to have been before let, was held not to be binding on his successor, although the lessee covenanted therein to inclose the land, and pay a rack-rent for it ;-Held also, that the statutes 92 Men. 8. c. 28, and 13 Elis, c. 10, are in pari materia, and must be taken together.

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