1846. TANNER V. MOORE. J. Tanner, the said plaintiff, that, if the said J. B. Moore, Queen's Bench. the said defendant, shall die in the life-time of his father, that I will, within six months after his said father's decease, pay the said plaintiff the sum of 1657. and interest, being the amount of the promissory note for which this action is brought. Dated 10th December, Wm. B. Moore." 1838. 66 It was objected, for the defendant, that this varied from the agreement set out in the declaration, since the consideration there stated was J. Tanner's "agreeing to stay," whereas the real consideration appeared to be his having agreed" to stay: and that a promise, on the latter consideration merely, was nudum pactum. The learned Judge was of opinion that Tanner's agreement was a continuing one: but he reserved leave to move for a nonsuit. Verdict for plaintiff. A rule nisi for a nonsuit was obtained in the ensuing term. In last Easter term (a), J. Greenwood shewed cause, and contended that the ruling of Erle J. was right; for that the "having agreed to stay” implied an agreement continuing down to the time of the promise, and executory at that time, if not without limit, at least until the expiration of six months after the death of J. B. Moore's father. In support of this construction he cited Payne v. Wilson (b), Com. Dig. Action upon the case upon Assumpsit, (B 1.), Russel v. Haddock (c), Butcher v. Stewart (d), (a) May 5th. Before Lord Denman C. J., Patteson, Williams and Wightman Js. (b) B.& C. 423. (c) 1 Sid. 294. (d) 11 M. & W. 857. He referred particularly to the judgment of Parke B., pp. 873-875. Volume IX. 1846. TANNER v. MOORE. Thornton v. Jenyns (a). [Lord Denman C. J. referred to Shenton v. James (b).] Greenwood also argued that, even if the consideration was partly executed, it would still support a promise; citing Com. Dig. Action upon the case upon Assumpsit, (B 12.). Crowder and Merivale, contrà, contended that "having agreed must be taken to imply an agreement made once, and complete at a past time; and which, therefore, being an executed consideration, could not support a promise, no request being averred; notes (1) and (a) to Osborne v. Rogers (c); and that the allegation of performance by the plaintiff, in the latter part of the count, was immaterial and could not aid. [Wightman J. Your argument is, that, if the agreement stated in the declaration were "In consideration of your having agreed to pay 5s. a week to A., I will pay you 1657. at his death," the consideration would be insufficient, no request being averred, although the plaintiff alleged performance of his own part of the contract.] It would. If the actual forbearance is relied upon, the averment should have been that the defendant promised in consideration that J. Tanner would forbear, and that he did forbear accordingly; note (2) to Forth v. Stanton (d). Crowder also cited, as to the construction and effect of the agreement, Roscorla v. Thomas (e) and Raikes v. Todd (g). Payne v. Wilson (h) was a different case from this: (a) 1 Man. & G. 166; particularly the judgment of Tindal C. J., pp. 188, 189. (b) 5 Q. B. 199. (d) 1 Wms. Saund. 211, 211 a. 6th ed. (e) 3 Q. B. 234. (h) 7 B. & C. 423. (c) 1 Wms. Saund. 264. 6th ed. (g) 8 A. & E. 846. 1846. TANNER V. MOORE. there the consideration set out was that plaintiff, at de- Queen's Bench. fendant's request, "would consent" to suspend proceedings; and the agreement given in evidence recited that plaintiff had, at defendant's request, "consented to suspend proceedings," and given a day for payment. In Butcher v. Steuart (a) the consideration alleged was that the plaintiff "would" procure the release of R. S. from arrest; the actual agreement was: "in consideration of your having" released R. S., I "engage, within one month from this date, to pay you " &c. This was reconciled with the declaration by the forced construction that payment was to be made in a month in consideration of the plaintiff " having then released" R. S. Here no such construction can be resorted to. And in that case the actual release, not the agreement, was relied upon as the consideration. The release, even if made at the same time as the promise, might be deemed a thing continuing. [Patteson J. The learned Judge evidently did not treat it so. And a voluntary release, once made, would be done and over. The plaintiff could not retake.] Cur. adv. vult. Lord DENMAN C. J. now delivered the judgment of the Court. The declaration in this case ran that, in consideration of the testator agreeing to stay proceedings in an action on a note, the defendant promised to pay the amount in a certain time. The written guarantee, when produced, appeared to be in consideration "of the plaintiff's (a) 11 M. & W. 857. Volume IX. 1846. TANNER V. MOORE. having agreed to stay" &c. A rule for a nonsuit was obtained on the ground of variance. The case of Roscorla v. Thomas (a) was strongly relied on. There however the declaration ran, in consideration that the plaintiff had bought a horse, the defendant warranted it sound. It was no question of variance; but the declaration was held bad in arrest of judgment, a past consideration, which that confessedly was, not being sufficient to support the promise. The case of Shenton v. James (b) was also cited. But there the question was whether the instrument was a promissory note, which depended on this, whether the money mentioned in it was payable at all events, which it clearly was, the consideration which was stated on the face of the instrument not being necessarily prospective. On the other side Butcher v. Steuart (c) was cited. That case goes even farther than the present; for there the declaration ran "in consideration that the plaintiff would procure the release of the said Robert Steuart;" and the written instrument ran, "in consideration of your having released the above named defendant." Both the declaration and the instrument there speak of a fact which can happen only once, and can hardly be continuing; and yet the Court held that there was no variance. Here the declaration speaks of the consideration as the plaintiff agreeing to stay &c. Now that word necessarily implies a continuing agreement till the action is stayed; and the words of the instrument," having agreed," necessarily imply the same; for it would be absurd to suppose that the defendant bound himself to 1846. TANNER V. pay the money in consideration of the plaintiff merely Queen's Bench. having at a past time agreed to stay the proceedings, unless that agreement was continuing at the time of the signing of the instrument, and until the action was actually stayed. The real meaning of both expressions is in truth the same: and this rule must be discharged. Rule discharged. MOORE. JAMES against BROOK. Friday, CASE for slander. The declaration contained three A declaration counts. The first count, after a general allegation of plaintiff's previous good character, alleged that, whereas also plaintiff, for a long time before the committing &c., had been and still is a peace officer of our Lady the Queen, and superintendent of the police of the borough of Leeds in the county of York; and, by reason thereof, plaintiff, during all that time, had and received a certain salary and reward for and in respect of his said office and employment of superintendent as aforesaid: And whereas also plaintiff hath always behaved and conducted himself, in his said office and employment, with fidelity and reputation and propriety, by means of which said premises plaintiff, before the committing &c., for slander alleged that plaintiff was a salaried supolice at L., perintendent of and that it was his duty, as such, to con duct himself temperately, and with de cency and propriety, while on duty, and to hinder and repress indecent and disorderly conduct in the police office that de : fendant, intending to injure plaintiff in his office, and cause it to be believed that he had miscon ducted himself as such superintendent, and cause him to be dismissed from his office, in a discourse which he had concerning plaintiff, as such superintendent, and concerning plaintiff's conduct in his office, falsely, &c., spoke and published concerning plaintiff, and concerning him as such superintendent, and concerning his conduct in his office, the false, &c. words: "I" (meaning defendant) "saw a letter, two or three days since, regarding an officer of the L. police force" (meaning plaintiff), "who" (meaning plaintiff) "had been guilty of conduct unfit for publication." Judgment arrested, after verdict, on the ground that the declaration did not shew how the imputation was connected by the speaker with plaintiff's office. |