that behalf mentioned, modo et formá; upon which issue was joined.

At the trial before Lord Abinger C. B., at the last assizes for the county of Derby, the following guarantee was proved.

"Mr. R. J. Norton,

"Sir,-In consideration of your engaging Mr. Edward Tarrand as traveller, we, the undersigned, do hereby agree to indemnify you against any loss or damage you may be called upon to sustain through his immoral or dishonest conduct. As witness our hands.

"Witness, to the signature of Mr. Powell, "Robert Mereweather."

The guarantee, though drawn up in the plural number, was signed by the defendant only; and it was signed by him on a Sunday, and then delivered to Tarrand, who, on a subsequent day, handed it to the plaintiff.

It appeared also, that Tarrand had been employed on one occasion, as traveller for the plaintiff, before the guarantee was given.

John Howell (one of the debtors mentioned in the declaration) was called as a witness for the plaintiff, and was objected to on behalf of the defendant as being interested in the event of the suit; his evidence was however admitted. (a) He proved, that, in the month of August 1839, Tarrand called upon him and said, that if Howell would do business with the plaintiff, he, Tarrand, would give him an order for clothes; on which Howell ordered some buttons, and Tarrand gave an order for some clothes, which were afterwards delivered to him by Howell. A similar transaction took place in October. The

(a) See Russell v. Blake, antè, Vol. II. 374., 6 & 7 Vict. c. 85.

1842.

NORTON

บ.

POWELL.

amount of the clothes supplied to Tarrand, was 8l. 16s. It was also proved, that moneys had been paid to Tarrand by debtors of the plaintiff, which had not been paid over to the latter. It was objected for the defendant, that the consideration for the guarantee was not truly stated in the declaration, the engagement being prior, not subsequent, to the promise. (a) This objection was overruled by the Lord Chief Baron, who also held, that there was not sufficient evidence to support the second plea, inasmuch as there was no promise, till the delivery of the paper to the plaintiff; the mere signing thereof by the defendant not being sufficient. The plaintiff recovered a verdict for 15l. 12s. 6d.

Goulburn Serjt., now moved for a new trial on the ground of variance and of misdirection, or to reduce the verdict to the sum of 87. 16s., on the ground that Howell's evidence was inadmissible.

First: there was a variance between the declaration and the contract proved. In the first place it was alleged to be the promise by the defendant alone, but though signed by him only, it was drawn up in the plural number. [Tindal C. J. It is like a joint and several promissory note. A note may be good, if drawn up in the plural number, though signed by one person only.

(a) If the evidence had shewn a continuous engagement, subsisting at the time of the promise, a question might have arisen whether the word 66 engaging," in the guarantee, must not be understood as meaning "having engaged," in which case the guarantee would be void for not shewing that such by-gone employment had been at the request of the defendant. The proper mode of raising the defence would ap

pear to be, to plead non-assumpsit, and also that the plaintiff did not engage E. T. modo et formâ. Then, upon shewing the prior and subsisting engagement, the defendant would be entitled to a verdict upon the former plea, if "engaging" were read as "having engaged," and upon the latter, if engaging" were understood to refer to a future engagement, and no dissolution of the prior engagement were shewn.

66

Besides the point is not raised on the record. (a)] Then, the consideration is not truly stated; it is alleged in the declaration that the consideration was, that the plaintiff "would then engage" Tarrand, whereas in fact he had been previously engaged by him, and the real consideration was, that he would continue him in his service, and should have been so stated; Wain v. Warlters (b), Saunders v. Wakefield. (c) [Cresswell J. The plaintiff avers that he did afterwards engage Tarrand in his service; why did not the defendant traverse that allegation if it was incorrect. By not doing so he has admitted it? Coltman J. The defendant is seeking to vary the written contract by parol.]

Secondly, as to the second plea, the evidence sufficiently shewed that the contract was in fact made on a Sunday. [Cresswell J. If a man write to his creditor on a Sunday admitting the debt, and promising to pay it, can this be said to be a void contract under the statute of Charles? Tindal C. J. I cannot say that I think that this was a contract, which, if made on a Sunday, was in the ordinary way of business. In the case of partnership, there is an implied authority, that one partner may enter into ordinary contracts, and thereby bind the firm; but he cannot bind them by giving guarantees. (d)]

Per curiam.

Rule refused on first and second points.

(a) If the intended co-promisor had actually signed the guarantee, the non-joinder would have been pleadable only in abatement. It might also be contended, that the words "we the undersigned" and "witness our hands" shewed that the party first signing did not mean

to enter into the engagement
alone, and that until both had
signed, the contract was con-
ditional and incomplete.

(b) 5 East, 10.; 1 J. P.
Smith, 299.

(c) 4 B. & Ald. 595.

(d) See Duncan v. Lowndes, 3 Campb. 478.; antè, 42 (a).

1842.

NORTON

v.

POWELL.

1842.

NORTON

V.

Upon the third point, as to the reduction of damages, the court granted a rule nisi; which on a subsequent day (8th May), was made absolute by consent.

'POWELL.

April 26.

M LAUGHLIN v. PRYOR.

sisting of the defendant and others, hired for a day's

excursion a carriage and post horses, driven by postilions, who were the

A party, con- TRESPASS. The declaration stated that the defendant heretofore, to wit, on &c., with force and arms forced and drove a certain carriage and certain harness attached thereto, and with which the same was then being drawn, upon and against a certain carriage, to wit, a gig, in which the plaintiff was then riding in and along a certain public and common highway, and thereby pulled over and upset the said gig, and thereby the plaintiff was then cast and thrown with great force and violence from and out of the said gig to The defendant and upon the ground there, and was there greatly rode upon the bruised, hurt, and wounded, &c. (with special damage in loss of business as a newspaper editor, and in the employment of other persons to publish the same).

servants of

the owner of the horses.

box. The

postilions, in endeavouring

to force their way into a

line of car

riages, over

turned a gig, and seriously injured the

plaintiff, who was in the

gig. The

Pleas: first, not guilty; on which issue was joined; secondly, that at the time when &c. the plaintiff was being driven in the said carriage called a gig, by a person whose name is to the defendant unknown, in and along the said highway, and at the said time when &c.

same was so carelessly and negligently and improperly driven, stopped and managed by the said person in the defendant, at said highway, near to the said carriage and harness so forced and driven by the defendants as in the declar

the time and

afterwards,

held himself

out as responsible for the accident, and used expressions shewing that he had a control over the postilions at the time it happened:

Held, that he was liable in trespass.

ation mentioned, that by reason thereof the said carriage and harness, without any default or wrong on the part of the defendant, was forced and driven by the defendant upon and against the said carriage called a gig, and thereby pulled over and upset the same, and occasioned the said injuries and damages in the said declaration mentioned; and so the defendant says that if any hurt or damage then happened to the plaintiff, the same was caused and occasioned by the said negligent, careless, and improper driving of the said carriage called a gig, and not by any default of the defendant, which is the said supposed trespass in the said declaration mentioned.

Replication to this plea, de injuriâ.

At the trial before Tindal C. J., at the sittings in London after last Trinity term, the following facts were given in evidence on the part of the plaintiff.

On the 3d of June 1840, the plaintiff was proceeding to Epsom races in a pony gig, belonging to and driven by one Mason. The defendant, who, together with a party of friends, had hired a carriage and four posthorses, driven by two postilions in the service of the owner of the horses, was on his way to the same place. The defendant and another person rode on the box of this carriage. At the toll-bar at Sutton a line of carriages bad formed, and Mason's gig was in that line. The carriage in which the defendant and his friends were driving came up to the toll-bar about the same time with Mason's gig, but the carriage was out of the line. Mason's gig was advancing at the time slowly in the line (there being a stoppage for the purpose of taking toll at the gate), when the postilion on the wheel-horse of the carriage in which the defendant was seated, called out to the postilion on the leader, "go in there." The latter immediately turned his horses' heads before Mason's gig. Mason endeavoured to keep his pony in

1842.

M.LAUGHLIN

V.

PRYOR