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construction which we can make of the clause is to give its proper and legal meaning to every word of it.

Grose, J.-It is said that the parol evidence tendered does not contradict the agreement; but the question is, Whether the statute does not require that the consideration for the promise should be in writing as well as the promise itself? Now the words of the statute are, "that no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, &c., of another person, &c., unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing," &c. What is required to be in writing, therefore, is the agreement (not the promise, as mentioned in the first part of the clause), or some note or memorandum of the agreement. Now the agreement is that which is to show what each party is to do or perform, and by which both parties are to be bound; and this is required to be in writing. If it were only necessary to show what one of them was to do, it would be sufficient to state the promise made by the defendant who was to be charged upon it. But, if we were to adopt this construction, it would be the means of letting in those very frauds and perjuries which it was the object of the statute to prevent. For, without the parol evidence, the defendant cannot be charged upon the written contract for want of a consideration in law to support it. The effect of the parole evidence then is to make him liable: and thus he would be charged with the debt of another by parol testimony, when the statute was passed with the very intent of avoiding such a charge, by requiring that the agreement, by which must be understood the whole agreement, should be in writing.

Lawrence, J.-From the loose manner in which the clause is worded, I at first entertained some doubt upon the question; but upon further consideration I agree with my Lord and my brothers upon their construction of it. If the question had arisen merely on the first part of the clause, I conceive that it would only have been necessary that the promise should have been stated in writing; but it goes on to direct that no person shall be charged on such promise, unless the agreement, or some note or memorandum thereof, that is, of the agreement, be in writing; which shews that

the word agreement was meant to be used in a sense different from promise, and that something besides the mere promise was required to be stated. And as the consideration

for the promise is part of the agreement, that ought also to be stated in writing.

Le Blanc, J.-If there be a distinction between agreement and promise, I think that we must take it that agreement includes the consideration for the promise as well as the promise itself: and I think it is the safer method to adopt the strict construction of the words in this case, because it is better calculated to effectuate the intention of the act, which was to prevent frauds and perjuries, by requiring written evidence of what the parties meant to be bound by. I should have been as well satisfied, however, if, recurring to the words used in the first part of the clause, they had used the same words again in the latter part, and said, "unless the promise or agreement upon which the action is brought, or some note or memorandum thereof, shall be in writing." But not having so done, I think we must adhere to the strict interpretation of the word agreement, which means the consideration for which as well as the promise by which the party binds himself.

Rule discharged.

THE main point involved in this case has been already discussed in the note to Birkmyr v. Darnell, ante, vol. i. p. 134. The case of Wain v. Warlters is, however, one of so much celebrity, that it would have been improper to omit it in a selection of leading cases; it was confirmed, as is there stated, by Saunders v. Wakefield, 4 B. & A. 596; and has since been acted on in numerous cases which are collected in the note above referred to. It will be recollected, that, according to the statute, the agreement, or some memorandum, or note thereof, is to be in writing, signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised. On these

words it has sometimes been made a question what can be deemed a sufficient signature to meet these words. It is clear that the signature need not be placed in any particular part of the in

See Saunder

strument or memorandum.
son v. Jackson, 2 B. & P. 238; Schneider
v. Norris, 2 M. & S. 286; Knight v. Crock-
ford, 1 Esp. 190; which are decisions on
the corresponding words in the seven-
teenth section. In Johnson v. Dodgson,
2 Mee & Welsb. 653, the following note,
written by the defendant, was held suffi-
ciently signed to satisfy the 17th section
of the statute.

"Leeds, 19 October, 1836.
"Sold John Dodgson (the defendant) 27
pockets Playsted 1836 Sussex at 103s.
The bulk to answer the sample.

"4 pockets Selme Beckley's at 95s. Samples and invoice to be sent by Rockingham coach. Payment in banker's at 2 months.

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The Statute of Frauds," said Lord Abinger, C.B., "requires that there should be a note, or memorandum, of the contract in writing, signed by the party to be charged. And the cases have decided that, although the signature be in the beginning or middle of the instrument, it is as binding as if at the foot of it, the question being always open to the jury, whether the party, not having signed it regularly at the foot, meant to be bound by it as it then stood, or whether he left it so unsigned because he refused to complete it." In Coles v. Trecothick, 9 Ves. 251, Lord Eldon said, that "where a party principal, or person to be bound, signs as what he cannot be, a witness, he cannot be understood to sign otherwise than as principal." But in Gosbell v. Archer, 2 Adol. & Ell. 500, where the purchaser affixed his signature

to an agreement for the sale of land, and underneath was written "Witness, Joseph Newman," in the usual place for a witness's signature, Joseph Newman being the clerk of the auctioneer employed to sell the premises, it was urged that Newman must be taken to have signed as agent for the vendor, and it was attempted to show a ratification of his agency. But the court was of opinion, that he signed simply as a witness; and Lord Denman, C. J., said that "he thought the above remark of Lord Eldon open to much observation; that no such decision had been actually made; and that, if it had, he should pause, unless he found it sanctioned by the very highest authority, before he held that a party attesting was bound by the instrument.'

GODSALL v. BOLDERO.

MICH. 48 G. 3. K. B.

[REPORTED 9 EAST, 72.]

A creditor may insure the life of his debtor to the extent of his debt; but such a contract is substantially a contract of indemnity against the loss of the debt; and therefore, if, after the death of the debtor, his executors pay the debt to the creditor, the latter cannot afterwards recover upon the policy; although the debtor died insolvent, and the executors were furnished with the means of payment by a third party.

THIS was an action of debt on a policy of insurance made the 29th of Nov. 1803, under seal of the defendants, as three of the directors of the Pelican Life Insurance Company, on behalf of the company; which recited that the plaintiffs, coachmakers in Long Acre, being interested in the life of the Right Hon. William Pitt, and desirous of making an insurance thereon for seven years, had subscribed and delivered into the office of the company the usual declaration setting forth his health and age, &c. and having paid the premium of 157. 15s. as a consideration for the assurance of 5007. for one year from the 28th of Nov. 1803, it was agreed that in case Mr. Pitt should happen to die at any time within one year, &c., the funds of the company should be liable to pay and make good to the plaintiffs, their executors, &c., within three months after his demise should have been duly certified to the trustees, &c., the sum of 5007. And further, that that policy might be continued in force from year to year until the expiration of the term of seven years, provided the annual premium should be duly paid on or before the 28th of November in each year. The plaintiffs then averred, that at the time of the making the said assurance, and from thence until the death of Mr. Pitt, they

(a) There was some discussion

in the course of

were interested in his life to the amount of the sum insured; and that they duly paid the annual premium of 15l. 15s. before the 28th of Nov. 1804, and the further sum of 157. 15s. before the 28th of Nov. 1805; and that after that day, and while the assurance was in force, and before the exhibiting the bill of the plaintiffs, viz. on the 23d of Feb. 1806, Mr. Pitt died; that his demise was afterwards duly certified to the trustees, &c.; since when more than three months have elapsed before the commencement of this suit, &c.; but that the 5007. has not been paid or made good to the plaintiffs. There were also counts for so much money had and received by the defendants to the plaintiffs' use, and upon an account stated. To this the defendants pleaded, 1st, nil debent. 2dly, That the plaintiffs, at the time of making the assurance, and from thence until the death of Mr. Pitt, were not interested in his life in manner and form as they have complained, &c. 3dly, As to the first count, that the interest of the plaintiffs in the policy, and thereby intended to be covered, was a certain debt of 5007. at the time of making the policy due from Mr. Pitt to the plaintiffs, and no other; and that the said debt afterwards, and after the death of Mr. Pitt, and before the exhibiting of the plaintiffs' bill, to wit, on the 6th of March, 1806, was fully paid to the plaintiffs by the Earl of Chatham and the Lord Bishop of Lincoln, executors of the will of Mr. Pitt. Issues were taken on the two first pleas: and as to the last, the plaintiffs, protesting that their interest in the policy thereby intended to be covered was not the said debt mentioned in that plea to be due to them from Mr. Pitt, and no other, replied, that the said debt was not afterwards, and after the death of Mr. Pitt, and before the exhibiting of their bill, fully paid to 'them by the Earl of Chatham and the Lord Bishop of Lincoln, executors of Mr. Pitt, in manner and form as alleged, &c.: on which also issue was joined.

The defendants paid 317. (a) into court upon the first count: and on the trial of the cause before Lord Ellenthe argument as borough, C. J., at Guildhall, it was agreed that a verdict. of the sum paid should be entered on the several issues, according to the

into court, in

respect of the premiums received; the

grounds of com

direction of the court, on the following case reserved.

The policy mentioned in the declaration was duly executed, and the premiums thereon were regularly paid. Mr.

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