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the paradox consists in this, that it may so conclude. The reason for that may have been, that there was the distinction between this and ordinary cases, that in them no fresh issue whatever could be raised; but in this the plaintiff may raise an issue as to the particular species of the genus, executor, to which the defendant belongs. The case of Scott v. Wedlake (a) seems to me to shew, that if the defendant does not choose to avail himself of the advantage of delay, he may waive the necessity for a replication, and take issue at once.
CRESSWELL, J.-It is a privilege which the defendant has of concluding to the country if he pleases.
Leave to amend, or judgment for the Defendant.
(a) In the Exch. Ch. in error, Trin. Vac. 1846.
CHAPMAN and Another v. Sutton. " In consider- ASSUMPSIT. The declaration stated, that at the time ation of advances made of the making of the promise of the defendant as hereinand to be made ofta mont
de after mentioned, and from thence hitherto, the plaintiffs S. C.," " or by any other persons of whom their firm may from time to time consist, to F. we jointly and severally hereby guarantee to the said T. Č. and S. C. the repayment of the said advances, and to indemnify them against any loss by reason of such advances, our liability not to exceed the sum of 10001. This guarantee to be a continuing guarantee, and to be a security to the said T. C. and S. C. to the extent of 10001. as aforesaid, for the whole of any balance which may from time to time, or at any time, become due to the said T. C. and S. C., or to the persons for the time being constituting the firm of the said banking-house :” Held, that this guarantee disclosed a good consideration for the promise to pay past as well as future advances, the future advances having been made. T. C. and S. C. declared upon this guarantee, and alleged that past advances had been made, and that in consideration of the advances so made, and that the plaintiffs would from time to time make advances to F., the defendant and one H. jointly and severally guaranteed to the plaintiffs the repayment of the said last mentioned advances, that the said guarantee should be a continuing guarantee to the extent of 1000l. for the whole of any balance which might become due to the plaintiffs, or to the persons for the time being carrying on the said trade or business. The declaration then averred that advances werc afterwards made by the plaintiffs to F.: Held, first, that there was a variance in the statement of the consideration, as it was the making advances by the plaintiffs, or any persons who might coustitute the firm ; secondly, that there was a variance in the statement of the promise, it being to pay what might be due to the plaintiffs, or those persons who might constitute the firm ; thirdly, that those variances might be amended by a Judge sitting at nisi prius ; fourthly, that a term in a special case that the Court should be at liberty to amend any part of the pleadings as they might think proper, gave no additional power beyond that possessed by a Judge at nisi prius.
exercised and carried on the trade and business of bankers 1846. in copartnership, and before and at the time of the making c of the said promise of the said defendant, the plaintiffs and Another had advanced to one G. Fielding divers sums of money, Sutton. amounting, to wit, to 2,6851. 10s. 10d., and the said G. Fielding was then indebted to the plaintiffs in the amount thereof; and thereupon heretofore, to wit, on the 7th of August, 1838, in consideration of the said advances so made as aforesaid, and that the plaintiffs would from time to time make advances to the said G. Fielding, of moneys in the way of loan, payments, discount, or otherwise, the defendant and one Robert Howland jointly and severally guaranteed, and then promised to the plaintiffs aforesaid, the repayment of the said last mentioned advances, and to indemnify them against any loss by reason of such advances, provided that the liability of the said R. Howland and the defendant was not to exceed the sum of 1000l. ; and the defendant and the said R. Howland then also, for the consideration aforesaid, promised the plaintiffs that the defendant's said guarantee and promise should be a continuing guarantee, and a security to the plaintiffs to the extent of 1000l. as aforesaid, for the whole of any balance which might from time to time, or at any time, become due to the plaintiffs, or to the persons for the time being carrying on the said trade or business. And the plaintiffs aver, that they, confiding in the said promise of the defendant, did afterwards, to wit, on the 8th of August, 1838, and on divers days and times afterwards, make to the said G. Fielding, at his request, divers advances of moneys, in the way of loan, payments, discount, and otherwise, amounting, to wit, to 10,000l. ; and although the time for the repayment of the said advances had elapsed before the commencement of this suit, and although the said G. Fielding was afterwards, and before the commencement of this suit, to wit, on the 1st of July, 1844, requested by the plaintiffs to pay them the same: yet he hath not paid the plaintiffs the same, or any part thereof, whereof the defendant and the said
CHAPMAN and Another
R. Howland afterwards, to wit, on the day and year last
Plea, non assumpsit.
The parties consented to the statement, under the 3 & 4 Wm. 4, c. 42, s. 25, of the following case, of which the pleadings were agreed to be considered as forming part. For some time previous to, and on and since the 7th of August, 1838, the plaintiffs carried on business as bankers at Aylesbury. For some time previous to the said 7th of August, 1838, G. Fielding had been a customer of the bank, and on that day, at the time the guarantee hereafter mentioned was given, the state of the accounts between the said G. Fielding and the plaintiffs was as follows, viz.:
Amount of advances made to Fielding - £20,507 10 5
Making the balance then due to the
plaintiffs by Fielding - -
1,685 10 10
On the said 7th of August, 1838, the defendant and Robert Howland gave the plaintiffs a guarantee in writing, signed by them the said Robert Howland and the defendant, viz. “in consideration of advances made and to be made, by Messrs. Thomas Chapman and Thomas Sands Chapman, of Aylesbury, bankers, or by any other persons, of whom their firm may from time to time consist, in the way of loan, payments, discount or otherwise, to George Fielding, of Thane, in the county of Oxford, ironmonger, we jointly and severally hereby guarantee to the said Thomas Chapman and Thomas Sands Chapman, the repayment of the said advances, and to indemnify them against any loss by
reason of such advances, our liability not to exceed the sum 1816. of 1000l. This guarantee to be a continuing guarantee, and to be a security to the said Thomas Chapman and and Another Thomas Sands Chapman, to the extent of 10001. as afore- Sutton. said, for the whole of any balance which may from time to time, or at any time, become due to the said Thomas Chapman and Thomas Sands Chapman, or to the persons for the time being constituting the firm of the said bankinghouse. Dated this 7th of August, 1838.” (Signed) « ROBERT HOWLAND,
“ THOMAS SEGRAVE SUTTON.”
On the same day, the plaintiffs advanced to the said G. Fielding 10001. After the day on which the said guarantee was given, the plaintiffs advanced to the said G. Fielding various other sums; of which there remained due to the plaintiffs, before the commencement of this suit, and still remains, a balance far exceeding 10001. The question for the opinion of the Court is, whether the plaintiffs are entitled to recover. The Court are to be at liberty to amend any part of the pleadings, as they may think proper.
Channell, Serjt., (Willes with him), appeared for the plaintiffs. It was clear, from the case of Kennaway v. Treleavan (a), and also from Johnston and Others v. Nicholls (6), that in order to constitute a valid consideration it was not necessary that it should be co-extensive with the promise. If some consideration applied in respect of which the promise was made, that was enough. Here the guarantee disclosed the consideration of future advances, which was sufficient to sustain the promise to pay past and future advances. [Cresswell, J., referred to Haigh v. Brooks (c), in which it was held, that the giving up of a
1846. guarantee void by the Statute of Frauds for want of con
sideration, was sufficient to sustain a promise to pay a sum CHAPMAN and Another of 10,0001.] If the case of Raikes v. Todd (a) were cited on SUTTON. the other side, it was clearly distinguishable from the present
case. The memorandum in writing there was in these terms: “I hereby undertake to secure to you the payment of any sums you have advanced, or may hereafter advance, to Messrs. D. & Co. on their account with you, commencing the let of November, 1831, not exceeding 20001.” The decision of the Court in that case proceeded on the impossibility of ascertaining what was the consideration for which the defendant made his promise, and, as the Court could not determine that the consideration alleged in the declaration was proved by the language of the guarantee, it was held that the plaintiff could not recover. But here clearly a good consideration was disclosed on the face of the guarantee, and, consequently, the promise alleged was well sustained. It was true the plaintiffs were not bound by the guarantee to make further advances; but if they did, then the defendant's guarantee was binding upon him. The case of The Fishmongers' Company v. Robertson (6) was an authority to that effect. There it was held, that although a particular contract was such as could not be a valid contract as against the corporation, unless it were under seal; yet that having been executed on the part of the corporation, and the defendants having received the full consideration, the latter were bound by the contract, and the plaintiffs were entitled to sue thereon. Then a question would arise, whether there was not a variance between the contract alleged in the declaration and the guarantee. The guarantee stated the contract to be in respect of advances already made, and afterwards to be made, by the plaintiffs, or any other persons of whom their firm should consist. The latter part relating to the change of persons was a contingency, but