1819. KIRKHAM against MARTER. the horse died; that the plaintiff had threatened to issue. The cause was tried on Thursday, 13th May, at the second Middlesex sittings in this term, before Abbott C. J., when the plaintiff proved a verbal contract, as laid in the declaration. Abbott C. J. thought this an undertaking for the default or miscarriage of another, within the statute of frauds; and, consequently, that the promise ought to have been in writing, and the plaintiff was nonsuited. The distringas was returnable on Monday, the 17th. The motion for a new trial was made made on the 21st; and although more than four days had elapsed since the trial, the Court agreed, after consulting with the Master, that such a motion might be made at any time within four days after the return of the distringas; and Abraham now moved for a new trial. The son, on whose behalf the promise was made at the time of making such promise, did not owe any debt to the plaintiff. This is not, therefore, an undertaking for the debt of another. The liability of the son for damages was not created at the time when the promise was made, and that is essential to bring the case within the statute of frauds. In Read v. Nash (a) it was decided, that a promise by a third person to pay damages, in case plaintiff would withdraw his record in an action for an assault and battery, was not within the statute. The court there said, "that the defendant, in the original action, was not a debtor; the cause was not tried; he did not appear to be guilty of any default or miscarriage; there might have been a verdict for him if the cause had been tried; he was never liable to the particular debt, damages, or costs;" and the authority of that case was afterwards recognized by the Court of Common Pleas, in Fish v. Hutchinson. (b) Burkmire v. Darnell (c) is an authority to shew, that the statute of frauds contemplated only an engagement to answer for the contract and not for the tort of another; and, therefore, that a promise to answer for the wrong of another need not be in writing. 1819. KIRKHAM against MARTER. 1819. KIRKHAM against MARTER. ABBOTT C. J. This case is clearly within the mischief intended to be remedied by the statute of frauds: that mischief being the frequent fraudulent practices which were too commonly endeavoured to be upheld by perjury; and if it be within the mischief, I think the words of the statute are sufficiently large to comprehend the case. The words are these: "No action shall be brought to charge a defendant upon any special promise to answer for the debt, default, or miscarriage of another person." Now the word "miscarriage" has not the same meaning as the word "debt" or "default ;" it seems to me to comprehend that species of wrongful act, for the consequences of which the law would make the party civilly responsible. The wrongful riding the horse of another, without his leave and licence, and thereby causing its death, is clearly an act for which the party is responsible in damages; and, therefore, in my judgment, falls within the meaning of the word "miscarriage." The case of Read and Nash is very distinguishable from this: the promise there was to pay a sum of money as an inducement to withdraw a record in an action of assault, brought against a third person. It did not appear that the defendant in that action had ever committed the assault, or that he had ever been liable in damages; and the case was expressly decided on the ground that it was an original, and not a collateral promise. Here the son had rendered himself liable by his wrongful act, and the promise was expressly made in consideration of the plaintiff's forbearing to sue the son. therefore think that the nonsuit was right. I HOLROYD HOLROYD J. (a) I am also of opinion that the nonsuit in this case was right. I think the term miscarriage is more properly applicable to a ground of action founded upon a tort than to one founded upon a contract: for in the latter case the ground of action is, that the party has not performed what he agreed to perform; not that he has misconducted himself in some matter for which by law he is liable. And I think, that both the words miscarriage and default apply to a promise to answer for another with respect to the non-performance of a duty, though not founded upon a contract. This case is certainly within the mischief contemplated by the legislature, and it appears to me to be within the plain, intelligible import of the words of the act of parliament. BEST J. It appears to me that this case is within the spirit and principle, as well as the words of the act. The principle of the act is this; that where a man undertakes to do something which by law he is not bound to perform, it shall be reduced to writing. Here the defendant does undertake to do something that by law he is not bound to do. It is not reduced to writing, and, therefore, that brings it within the spirit of the act. The question is, whether the words of the act are large enough to embrace this case. There is nothing to restrain these words default or miscarriage; and it appears to me that each of them is large enough to comprehend this case. Rule refused. 1819. KIRKHAM against MARTER. 1819. Saturday, The venue having been changed by the defendant, from London to Staffordshire, on the usual affidavit, the Court refused to bring back the venue to London, on an affidavit that the cause of action arose partly in Staffordshire and partly in Worcestershire, and that a ma terial witness WOOD against PERKES. THE venue which was originally laid in London had been changed to Staffordshire, on the usual affidavit; and a rule nisi was obtained for bringing back the venue to London, upon the plaintiff's undertaking to give material evidence either in Worcestershire or London. The affidavit stated that the cause of action arose partly in Staffordshire and partly in Worcestershire, and added that the residence of a material witness was in London. This affidavit, however, disclosed no particular fact shewing that the cause of action did not arise wholly in Staffordshire. In answer to this last resided in Lon- application, it was again sworn positively, that the don, and on the plaintiff's untaking to give material evidence in one or other of those counties. cause of action arose wholly in Staffordshire, and not elsewhere. Reader, against the rule, relied on the usual practice which had prevailed of not bringing back the venue, without an undertaking to give material evidence in the county where it was originally laid. D. F. Jones, contrà, cited Cailland v. Champion (a), Hunt v. Bridgford (b), Neale v. Nevill (c), Powell v. Rich (d), and contended, that by the offer to give material evidence either in Worcestershire or London, he had virtually negatived the original affidavit. (a) 7 T. R. 205. (b) 1 Taunt. 259. ABBOTT |