1829.

Phœnix and
Whitney

v.

Stagg.

April Term, tion, was, that he had not settled with any of his creditors, with a view to obtain the benefit of the act. The facts set forth in the replication, certainly show a settlement with Judd, within the fair import of that clause of the oath. But we are not at liberty to refer the party's oath to a period different from that fixed by the statute. It was strictly true, for aught that appears at the time it was made, and acted on by the Recorder, and it would be over-leaping the plain terms of the statute, to refer it to a subsequent period, with a view to falsify it. In this respect, the case differs from Robson v. Calze, [Doug. 228,] cited by the plaintiffs' counsel. There, the affidavit of the party was true, as he supposed, when it was sworn to, but known by him to be false when laid before the Lord Chancellor, for the allowance of the bankrupt's certificate.

It is again contended by the plaintiffs' counsel, that the facts set forth in the replication, amount to an averment, that the insolvent had concealed a part of his effects. The allegation is, that he had secured to be paid to Judd a portion of his debt, and it is said, that we must intend that such security was given by an appropriation of the insolvent's own estate. Such intendment, I apprehend, cannot fairly be made. The security given to Judd, may have been by the intervention of some friend, and this will be presumed to have been the case, where a contrary intendment will charge the party with fraud.

On the whole, I am of opinion, that upon this record, the defendant is entitled to the protection of his discharge, notwithstanding the finding of the issue against him. The plaintiffs' judgment for the debt, must be so modified, as that no execution can issue against the defendant's person, and a special entry must be made on the record to that effect.

The defendant's counsel, in the first instance, moved for judgment "non obstante veredicto, or for such other rule, or order, as the "court might grant." They then contended, that the facts stated in the replication were all immaterial, and that, therefore, the de

1829.

fendant might have judgment to the extent of his plea, and cited April Term, Whittemore v. Adams, [2 Cowen's R. 626.]

Mr. Tallmadge, contra, contended, that the defendant could in no case, move for judgment, non obstante veredicto. It is the privilege of the plaintiffs to make this motion, while the defendant, on his part, is allowed to meet corresponding defects by a motion in arrest. In all cases where this motion prevails, a repleader may be awarded, and it is only made in cases of issues palpably immaterial.

The Court ruled, that the defendant could not move for judgment, non obstante veredicto,* in a case where it was clear that the plaintiffs were entitled to it. His object was, not to enter up a judgment in his own favour, but to cause that of the plaintiffs to be modified to the extent of his plea, which claimed nothing more than a personal privilege. They therefore refused that motion, and permitted the defendant to seek for relief in some other form. The defendant, therefore, subsequently made the motion reportin the case above.

Phoenix and
Whitney
Stagg.

v.

JOHN WHEELWRIGHT versus JOHN A. MOORE.

In an action upon a guaranty, where the defendant, relying upon the statute of frauds, pleads that "the promise mentioned in the declaration, is a special pro" mise to answer for the debt of a third person, and that no note or memoran"dum in writing, shewing the consideration of such promise was ever signed by "him," the plaintiff, if the consideration of the guaranty was the sale of goods to a third person, made at the same time with the guaranty, must set forth by his replication, what he would be bound to shew in evidence, if the statute were not pleaded. It must appear by the replication, that the sale of the goods and the making of the guaranty, were simultaneous acts, constituting parts of one and the same agreement.

The third and fourth counts of the plaintiff's declaration set forth, that one S. made certain promissory notes to the plaintiff, the payment of which, the defendant guarantied, " in consideration of value received by S. and the defendant." The defendant having pleaded the statute, the plaintiff replied, setting forth a written promise of the defendant, containing copies of the notes which were expressed to be " for value received." The guaranty also set forth, "that in pursu"ance of the understanding" between the plaintiff and S., the defendant stipulated to pay the notes, if S. did not. HELD, that the replication did not support the averments in the declaration; the contract there set forth, not appearing with sufficient certainty, to rest on the same consideration.

This case was formerly before the court, upon a demurrer to the plaintiff's evidence, [ante p. 201.] It was an action upon a guaranty given by the defendant to secure the payment of three certain promissory notes, made by one Scovell in favour of the plaintiff.

The declaration contained four counts. The two first were like those contained in the former declaration, and differed by confining the breach of the defendant's contract to the non-payment of the second note, merely.

The third count alleged, that Scovell, on the 5th day of December, 1827, made three several promissory notes in favour of the plaintiff, for the sum of three thousand five hundred and thirty dollars, and twenty-seven cents each: the first being payable in seven, the second in nine, and the third in twelve months after date. That the defendant, " in consideration of value received by " Scovell and him, the said defendant," undertook and promised the

v.

plaintiff, "that he would guaranty the just and full payment" of April Term, the aforesaid notes " to the plaintiff, or his order." This count 1829. then averred, that the second of said notes had become due, but Wheelwright that the same had not been paid either by Scovell or the defendant, nor had the defendant guarantied to the plaintiff "the just " and full payment thereof," although requested, &c.

The fourth count was substantially like the third, but confined its allegations to the second note, omitting the others entirely.

The defendant relied upon the statute of frauds as a defence, and pleaded separately to each count of the declaration, that the promise therein mentioned as having been made by the defendant, " was a special promise to answer for the debt of a third

66

person, to wit, for the debt of Noah Scovell;" and that "no " agreement in respect of, or relating to, the said supposed pro" mise, or any memorandum or note in writing, wherein the con"sideration for such promise was expressed, stated, and shown, " according to the form of the statute in such case provided, was "ever signed by the said defendant, or by any other person or " persons, by him thereunto lawfully authorised."

To this plea, the plaintiff replied, that the promise mentioned in the declaration, " or the agreement in relation to the same," was in writing; and he set forth the notes of Scovell, and the special agreement of the defendant, exactly as they appeared in evidence in the former case. The replication then averred, that the consideration of the said promise was "expressed or stated in " writing in the said agreement," "according to the form of the " statute," and that "the said instrument in writing was sign"ed by the defendant;" and prayed that the same " might be "inquired of by the country."

To each of these replications, there was a separate general demurrer; and the cause was now argued by Mr. J. Anthon, for the defendant, in support of the demurrer, and by Mr. Wilkes, for the plaintiff.

Mr. Anthon contended: I. That the promise was a collateral one, on the face of the pleadings, and to be valid, should have the consideration expressed. II. That the consideration, as ex

VOL. I.

82

Moore.

1829.

v.

Moore.

April Term, pressed, is the understanding and agreement between Wheelwright and Scovell, which is unintelligible, without recourse to Wheelwright oral testimony, and, therefore, the promise is void. III. That the consideration expressed in the agreement, varied from the consideration averred in each of the counts, and, therefore, the replications were departures. The two last counts aver, that the consideration for the defendant's promise, was value received by him and Scovell; the written agreement disclosed by the replication, expresses "the value" to have been received from Scovell alone. This is a manifest departure from the declaration, and the defect may be taken advantage of by general demurrer. He cited the case of Morley v. Boothby, [3 Bing. R. 107,] as precisely in point.

Mr. Anthon observed, that the agreement set up in the two first counts of the declaration, had already been before the court, when the case was presented by the demurrer to the plaintiff's evidence; and it was then decided, that the proof did not support the declaration. The court held, that the plaintiff had the right to show, that the credit given to Scovell, and the signing of the guaranty, were one transaction: and that if it were proved, that the two acts were concurrent, then one consideration would be sufficient to support both promises. But the court, at the same time decided, that the contract itself, upon its face, did not show, that the transactions were one entire agreement, and, therefore, that the declaration was not supported by the proof.

The defendant has not varied his case in relation to the two first counts, in any way, except by pleading that now, which he then gave in evidence. The court cannot infer that the two acts were concurrent; but, on the contrary, the fair presumption is, that Scovell's notes were made and delivered before the defendant's guaranty was given. If so, the contract was clearly void. [Fell on Guar. p. 25, 37.]

Mr. Wilkes, for the plaintiff, contra, contended, that the "value "received," specified in the notes of Scovell, was the consideration, not only of the notes, but also of the guaranty, in which they were incorporated, Both promises were branches of the same contract, and founded on the same consideration.