RELATING TO THE the sum of £, and was and is, by means of the premises, otherwise greatly injured and damnified. [If the goods were sold under the distress, then SALE, USE, &c. the declaration should be framed accordingly. Add an account stated, and OF LANDS, &c. breach, as ante, 36. XXIV. ON GUARANTEES. For that whereas heretofore, to wit, on &c. [date of guarantee] in consideration that the plaintiff, at the request of the defendant, would [here set out the terms of the guarantee as relates to the consideration for it. In the case upon which this form was framed, it was thus: "sell and deliver to one E. F. (k) See a form, 1 Rich. C. P. 471; 2 Lord Raym. 1085. Whenever the defendant is collaterally liable to pay for goods, &c. furnished to a third person (for the criterion of which see 2 T. R. 80, 81; 3 Chit. Com. Law, 318 to 322; 1 Chit. Col. Stat. tit. Frauds), his undertaking must be in writing, under the 29 Car. 2, c. 3, s. 4, and must state the consideration of the defendant's undertaking; 5 East, 10; 4 B. & Ald. 595; 6 J. B. Moore, 86; 1 Saund. 211 a; and the declaration must be special as above, and not merely for goods sold and delivered to the defendant, or bargained and sold to him, and delivered to a third person at his request; 1 Saund. 211 a, b; 2 Campb. 215; Ventr. 268, 293; but the declaration need not state that the contract was in writing or signed; 1 Saund. 276, n. 1; 6 Bing. 529. It is not necessary that the consideration should be co-extensive with the promise, or that it should appear in express terms on the face of the instrument; in Harves v. Armstrong, 1 Bing. N. C. 761, Tindal, C. J. lays down the following rule, he says, "that the consideration need not appear on the instrument in express terms," but adds "not that a mere conjecture, however plausible, that the consideration stated in the declaration was that intended by the memorandum would be sufficient to satisfy the sta tute, but there must be a well grounded inference to be necessarily collected from the terms of the memorandum that the consideration stated in the declaration and no other than such consideration was intended by the parties to be the ground of the promise." In the case of Raikes and another v. Todd, 1 P. & D. 138, it was holden that in the following guarantee: "I hereby undertake to secure to you the payment of any sums of money you have advanced or may bereafter advance to H. D. & Co. on their account with you commencing the 1st November, 1831, not exceeding 2000l." the consideration for guaranteeing past advances did not sufficiently appear so as to satisfy the Statute of Frauds. Where the defendant sent the plaintiff the following letter: "W. being disappointed in receiving remittances and you expressing yourself inconvenienced for money, I send you his acceptance at two months, you may put your name as drawer, and safely pay it away;" and the plaintiff refusing to take the bill unless the defendant put his name to it, the defendant wrote on the back of the letter, "I never put my name to bills, respectable professional men should not, but I will see it paid for W.:"it was held, that the guarantee was sufficient; Emmott v. Kearns, 5 Bing. N. C. 559. In an action on the following guarantee: "In consideration of your supplying my nephew V. with china and earthenware, I guarantee the payment of any bills you may draw on him on account thereof to the amount of 2001.," it was held that the guarantee was a continuing one, and that the defendant was liable upon it, although, after it was given, goods to a greater amount than 2001. had been supplied to and paid for by V.; Mayer v. Isaac, 6 M. & W. 605; and see further as to when a guarantee contiques, 12 East, 237 ; 2 Camp. 413, 436; 6 Bing. 244, 276; Chit. jun. on Contracts, 3d edit. 525; 3 Chit. Com. Law, 323. In an action on a guarantee given by defendants to see paid certain acceptances of L., in consideration of plaintiff's giving up, at defendant's request, a previous guarantee by him to pay plaintiff 10,000l. for L., and the guarantee given up was as follows: "In consideration of your being in advance to L. in the sum of 10,000l. for the purchase of cotton, I hereby give you my guarantee for that amount on their behalf," it was held that it was not clear that this guarantee was invalid so as to be worthless as a pecuniary consideration, for it might be construed to relate to prospective advances, but that at all events as the plaintiff had been induced at the defendant's request to part with it, the relinquishment of it was a good consideration for the subsequent guarantee; Haigh and another v. Brooks, 2 P. & D. 477. As to the liability of a party giving a guarantee to a firm after there is a change in the firm, see Day v. Davy, 10 A. & E. 30 ; 2 P. & D. 249, S. C. When a party guaranteeing is discharged or released, see 3 Chit. Com. Law, 324 to 327; 2 D. & R. 61; 1 B. & C. 10, S. C.; 2 D. & R. 337; 2 Swanst. 190; 4 J. B. Moore, 153. If the guarantee be for goods to be sold, defendant will not be liable for goods delivered in part discount of a bill; Evans v. Whylie, 5 Bing. 485; 3 Moore & P. 130. How far a surety may be relieved, 3 Chit. Com. Law, 328 to 335. See the different decisions collected on this subject in the 10th edit. of Selw. N. P. 838 to 856, and in the 3rd edit. of Chit. jun. on Contracts. XXIV. ON GUARANTEES. On a promise to be accountable for goods to be sold on credit to a third person. (k) ON GUARANTEES. Sale and delivery of goods to a third person on credit. The credit elapsed, but the principal has not paid. Notice to defendant. Defendant's breach. On promise to indemnify the on credit, all such goods as he the said E. F. should have occasion for and or any and the time for payment of the price of the said goods by the said E. F. to See Betts v. Gibbins, 4 Nev. & Man. 64. plaintiff for refusing to deliver goods to a third person, and law. XXV. ON PRO MISES TO INDEMNIFY. By acceptor of a bill of ex change for the XXV. ON PROMISES TO INDEMNIFY. For that whereas heretofore, to wit, on &c. [date of bill] in consideration that the plaintiff, for the accommodation and at the request of the defendant, accommodation would accept a certain bill of exchange in writing, bearing date a certain day of defendant, and year therein mentioned, to wit, the day and year aforesaid, and made nifying plaintiff, and drawn by the defendant on the plaintiff, and whereby the defendant re&c. (n) for not indem (1) Cro. Jac. 500; Cro. Eliz. 85, 91; 2 Hen. Bla. 131; 1 Stra. 88. Sed quære, if it be a necessary averment. (m) It seems not necessary to deny a payment by the third person; 1 Sid. 178; 2 Rol. 738, 1. 15. (n) See other forms for not indemnifying, post, 234, 235; 1 Wentw. 288; Pl. Ass. 38. See a similar action and the pleadings, 3 Wils. 346. See a declaration on a special agreement to indemnify acceptor, Jallop v. Ebers, 1 Bar. & Adol. 698. A contract to indemnify is generally implied, as on the part of a defendant to indem ΤΟ INDEMNIFY. quired the plaintiff [two] months after the date thereof to pay to the order ON PROMISES of the defendant the sum of [£50] as for value received, (o) and would deliver the same so accepted to the defendant, in order that he the defendant might negociate the same for his own proper use and benefit, he the defendant then promised the plaintiff [to provide money for the payment of the said bill of exchange when the same should become due and payable (p)] and to indemnify and save harmless the plaintiff from any loss or damage for or by reason of his acceptance of the said bill of exchange as aforesaid. And the plaintiff avers that he, confiding in the said promise of the defendant, did afterwards, to wit, on &c., the day and year aforesaid, accept the said bill of exchange, and deliver the same so accepted to the defendant for the purpose aforesaid; and although the said bill of exchange, so accepted as aforesaid, was afterwards, to wit, on the day and year aforesaid, negociated by the defendant for his own proper use and benefit, and the same hath long since become due and payable; Yet the defendant, not regarding his said promise, did not nor would [provide money for the payment of the said bill of exchange when the same became due and payable, nor] indemnify or save harmless the plaintiff from any loss or damage for or by reason of his acceptance of the said bill of exchange as aforesaid, but wholly neglected and refused so to do; by means and in consequence whereof the plaintiff, as such acceptor of the said bill of exchange as aforesaid, afterwards, to wit, on the day and year aforesaid, was called upon and forced and obliged to pay, and did then pay to one the holder thereof, the said sum of money in the said bill of exchange specified, together with certain interest thereon, and the costs of a certain action before then brought in the Court of our lady the queen, before the queen herself, (q) on the said bill of exchange, by the nify a person who becomes bail for him, 3 Wils. 262; or a surety for him at his request, 2 T. R. 105; 7 T. R. 568; 2 B. & P. 268; or a broker on making a distress, though not regular; 4 Bing. 74; see also 5 Bing. N. C. 636. If the thing to be done be obviously illegal, no contract to indemnify can be implied, but otherwise where the act is not apparently illegal; 8 T. R. 186; and see in general as to contracts of indemnity, 4 Bing. 74. A party who contracts to buy shares in a railway contracts no liability at all with the company, so that the seller is not a surety for him, and therefore an action will not lie on an implied promise to indemnify against all future calls; Humble v. Langston, 7 M. & W. 517. If plaintiff becomes bail for a stranger in consideration of defendant's request and of defendant's promising to indemnify the plaintiff against the consequences, no action lies upon such promise, unless it be in writing under Statute of Frauds; Green v. Cresswell, 10 A. & E. 453. When the debt of the principal has been paid by the surety, a common count for money paid is sufficient; but when a surety has not actually paid the debt in money, but has only given security for it, or he has sustained any costs or damage, the declaration should be special; 3 East, 169; 8 T. R. 310; 7 T. R. 204; 11 East, 52; 6 Bing. 299. So to recover any costs paid by the acceptor, a spe- What is a legal damnification, so as to (0) The bill of exchange may be described concisely, according to its legal effect. (p) These words are to be omitted unless there was an express engagement to provide for the bill. (q) If the defendant was arrested, state the fact accordingly, and let the averment of damage be according to the fact. All these costs, &c. are recoverable; 1 Atk. 262; 3 Wils. 13; 8 East, 593. But it seems the plaintiff cannot recover more than taxed costs; see 4 Taunt. 7; Ry. & Moo. C. N. P. 419; but see Nowall v. Roake, 1 Chit. Col. Stat, 274; sed vide 1 Stark. 306. ON PROMISES said ΤΟ INDEMNIFY. By the maker of a promissory note made for the accommodation of defendant, for not indemnifying, &c. (s) By a broker against a party who employed him to distrain for rent, for not indemnifying from loss by reason of the distress. against the plaintiff, in the whole amounting to a large sum of money, to wit, the sum of £, and thereby also the plaintiff sustained and incurred and became liable to pay (r) divers costs and expenses, amounting, to wit, to the sum of £- in and about the settling and putting an end to the said action; and by means of the said several premises the plaintiff hath been and is damnified to the amount thereof. [The words between brackets, relative to the defendant's providing money for the payment of the bill, are to be omitted, if there was no promise to that extent. Add the account stated, and common breach, as ante, 36. N.B. The plaintiff might recover the amount of the principal money under a common count for money paid, but not the costs. For that whereas heretofore, to wit, on &c., [date of note, or about it,] in consideration that the plaintiff, at the request of the defendant, and for his accommodation, would make and deliver to one T. H. his certain promissory note in writing, and thereby promise to pay to the said T. H. or order, on demand, the sum of £—, as for value received by the piaintiff of the said T. H., he the defendant then promised the plaintiff that he the defendant would save harmless and indemnify the plaintiff against the payment of the said sum of £ in the said note mentioned, and all charges and expenses he should bear, sustain or be put unto by reason of his making and delivering of his said note to the said T. H.; and the plaintiff in fact saith that he, confiding in the said promise of the defendant, afterwards, to wit, on &c., aforesaid, did make his certain promissory note in writing, bearing date the &c. aforesaid, and did thereby promise to pay to the said T. H. or order, on demand, the said sum of £- as for value received by the plaintiff of the said T. H., and that he the plaintiff did deliver the said note so made by him as aforesaid to the said T. H.; and the plaintiff further saith that the defendant not having saved harmless and indemnified the plaintiff against the payment of the said sum of £— in the said note specified, by the payment thereof, or of any part thereof, to the said T. H., and the said sum of money being wholly unpaid, he the plaintiff afterwards, to wit, on the day and year aforesaid, was compelled and obliged to pay, and did then pay to the said T. H. the said sum of £- in the said note mentioned and contained, being then due and payable by virtue of the said note, whereof the defendant afterwards, to wit, on the day and year aforesaid, had notice; nevertheless the defendant, not regarding his said promise, hath not yet repaid to the plaintiff the said sum of £, or any part thereof, nor in any manner indemnified him on account of his having paid the same (although so to do he the defendant afterwards, to wit, on the day and year aforesaid, and oftentimes since, hath been requested by the plaintiff,) but hath hitherto wholly neglected and refused, and still doth neglect and refuse so to do. (t) [Add the account stated and breach, as ante, 36; and see note at end of last precedent. See Toplis and another v. Grant, 5 Bing. N. C. 636. (r) As to mere liability, see Pricket v. Boevey, 3 Tyrw.949. (s) There is an implied promise to indem nify in this case, ante, 232, n. (n). (t) If a plaintiff has sustained any special damage, it should be here inserted. TO INDEMNIFY. For not indem For that whereas heretofore, to wit, on &c. [date of writ] a certain writ ON PROMISES of our said lady the Queen, called a [capias] directed to the sheriff of -, was issued out of the Court of our said lady the Queen of the Bench at Westminster, in the county of Middlesex, by which said writ our said lady nifying bail to the Queen commanded &c., [set out as much of the writ and of the indorse- the sheriff. (u) ment for bail, and the delivery to the sheriff, and the arrest, as post, Declarations in Debt on Bail-bonds.] And thereupon afterwards, to wit, on &c., [date of bail-bond] in consideration that the plaintiff, at the request of the defendant, would, together with one J. T., become bail and surety for the defendant, and would, as such bail and surety, seal, and as his act and deed deliver to the said R. B., as such sheriff as aforesaid, his certain writing obligatory, commonly called a bail-bond, in the penal sum of £, to be paid to the said sheriff, with a condition to the said writing obligatory subscribed, that if &c., [here set out so much of the condition as relates to the defendant's appearance] he the defendant then promised the plaintiff that he Defendant's the defendant would perform the said condition of the said writing obli- promise to indemnify. gatory, and save harmless and indemnify the plaintiff from all payments, damages, costs and expenses, which he the plaintiff should or might incur, bear, pay, sustain, or be put unto, by reason or by means of his so becoming bail and surety for the defendant as aforesaid. And the plaintiff in fact Plaintiff seals saith that he, confiding in the said promise of the defendant, did afterwards, bail-bond. to wit, on the said &c. aforesaid, at the request of the defendant, seal, and as his act and deed deliver to the said R. B., as such sheriff as aforesaid, the said writing obligatory, called a bail-bond, conditioned as aforesaid. Yet Defendant's the defendant, not regarding his said promise, did not nor would appear nonappearance. before the said justices of the Bench of our said lady the Queen at Westminster aforesaid, according to the said condition, to answer to the said I. L. and W. E. in the said plea in the said condition mentioned, according to the form of the said condition, by reason whereof the said writing obligatory became forfeited, and the plaintiff thereby became liable to pay to the said sheriff the said penal sum of £. And thereupon the said R. B., as Bail-bond assuch sheriff as aforesaid, afterwards, to wit, on &c., at the request, costs, signed. and charges of the said I. L. and W. E., the plaintiffs in the said suit, by an indorsement on the back of the said writing obligatory, duly assigned the said writing obligatory to the said I. L. and W. E. And the plaintiff further Action on bailsaith that thereupon afterwards, to wit, on &c., a certain action was commenced and prosecuted on the said bail-bond, in the said Court of our said. lady the Queen of the Bench aforesaid, at Westminster aforesaid, by and at (u) See 3 Wils. 262; 2 Bl. Rep. 794. Bail may recover against the principal any expenses they may have incurred in taking him into custody for the purpose of surrendering him; 5 Esp. N. P. C. 171; sed vide 1 C. & P. 434. It is a general rule, that to support the common count for money paid, the defendant must have been originally liable to the debt, or money paid by the plaintiff; 1 M'Clel. 48, 25. Therefore it is proper to declare specially on the implied contract to indemnify, as above; 6 Car. & P. 673; 3 Tyrw. 949. Where the surety has paid expenses or incurred a loss beyond the amount of the debt, or money for which he became bound for the defendant; and where a surety bond. |