Vol. III. Ch. I. making thereof, unless such agreement, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." The best mode of taking a case out of this statute is to state the contract between the parties formally, by memorandum of agreement between them, as ante page 1.; stating the consideration of each party's engagement. (1) But this may be effected by an exparte memorandum, signed by the forparty, without any mal agreement between the parties, as thus:" Memorandum. In consideration of Mr. A. B. having agreed to sell and deliver to me, &c. at and for the price or sum of £- for each and every of the said, &c. and to deliver the same on, &c., I hereby agree to purchase and take of and from him the said A. B. the said &c. at and for the price aforesaid, to be paid by me for the same, provided the same be delivered to me monthly, so as to complete the delivery of the whole of the said &c. within the space of two years from the date hereof. Dated, &c. C. D." The vendor or manufac turer must sign a corresponding memorandum, or he will not be liable. The like to take Sect. Statute against Frauds, 89 Car. 2. c. 3. The statute against frauds, 29 Car. 2. c. 3. § 17., enacts, that "no conCase out of 17th tract for the sale of any goods, wares, and merchandizes for the price of 10 sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of the payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." The contract for a sale of goods, to avoid the effect of this statute, may be, and sometimes is, by memorandum of agreement like that ante 1. to 2.; and if there be a surety for the payment of the price, that is the best form of contract. But in general where there is no surety, a contract of sale is entered into by means of bought and sold notes. The vendor's bargain is usually in these words : Sale Note. Bought Note. An Agreement by a Third Person to be respon sible for the Debt, Default, or Miscarriage of another, to 1st January 1823. Sold to C.D. 100 tons of hemp at £ days for delivery; payment by bill at 3 months. And the bought note is thus: per ton, 14 Signed Å. B. (2) per ton, 1st January 1823. Bought of A. B. 100 tons of hemp at 14 days for delivery; payment by bill at 3 months. Signed C. D. (3) The statute against frauds, 29 Car. 2. c. 3. § 4., enacts, that "no action shall be brought whereby to charge any executor or administrator, upon any special promise, to answer damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, or to charge any person upon any agreement made upon consideration of marriage, unless the agreement prevent Opera- upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.' Under this statute, an agreement to pay the debt of another must contain the consideration for the promise, as well as the promise itself, and parol evidence of the consideration is inadmissible (4). The most perfect mode of entering into a contract for the payment of the debt of another is by formal agreement, as ante 1. to 2. But it is more usual in practice for the party guaranteeing merely to write a letter thus: tion of Statute against Frauds, 29 Car. 2. c. 3. sect. 4. (1) See Saunders v. Wakefield, 4 B. & A. 595. (2) See Saunderson v. Jackson, 2 Bos. & Pul. 238. 3 Taunt. 169. (3) Egerton v. Mathews, 6 East, 307. 1 New Rep. 252. See other forms of contract of sale, post. (4) Saunders v. Wakefield, 4 Bar. & AH. 595. Sir, London, 1st January 1823. In consideration of your selling and delivering to Mr. A. B. on a credit of months, such goods as he may want of you in the way of your trade, I hereby agree to be responsible to you for the due payment for the same to the amount of any sum that may at any time become due, not exceeding €500. I am, Sir, yours, &c. C. D. (1) This indenture of two (or "three" or "four," &c.) parts, made this 1st day of January in the year of our Lord 1823, between A. B. of, &c. (here describe party's place of abode, and his addition of degree or trade, and the relative character, if any, under which he becomes a contracting party, as if entered into by an agent, say, "between A. B. of, &c. by C. D. his attorney, "or agent, lawfully constituted in this behalf," if by partners, say, "between A. B. of, &c. and C. D. of, &c. copartners in trade," and so on; if by one partner for the rest, say, "between A. B. of, &c. C. D. of, &c. and E. F. of, &c. by the said A. B., as well in his own name, as for and in the names of the said C. D. and E. F. duly and lawfully authorized in that behalf," or if by a trustee, &c. describe him accordingly) of the one part, and C. D. of, &c. [follow same directions as those laid down between the foregoing brackets], of the other part, [or if more than two parts, say, "between A. B. of, &c. of the first part, C. D. of, &c., of the second part, and E. F. of, &c. of the third part," and so on. Whereas, &c. [here set forth recitals]. (3) Now this indenture, [or if no recital necessary, begin thus, "This indenture witnesseth, &c."] witnesseth, that [if the indenture is for carrying into effect any future purpose, here state it, by saying, “that for the purpose of, &c." stating it, or if it alludes to a thing or act already done or executed, say "that in pursuance of, &c.", and proceed thus, and] for and in consideration of, &c. [stating the executed or executory consideration, or "for the considerations hereinafter mentioned,"] the said A. B. [" hath, &c." (if act already done, stating it, or if to be done, "doth, &c.") If there are any covenants, proceed thus, "And the said A. B. (the contracting party),"] for himself, his heirs, (4) executors, administrators, and assigns, and every of them, [or if the covenant be made by one or more jointly, or jointly and severally, observe directions in this respect, as laid down with regard to simple contracts, and post], doth hereby covenant, promise and agree with and to the said C. D. his executors, administrators, and assigns [follow directions between last brackets], and with and to each of them [or, each and every of them], in manner following; that is to say, that, &c. [here set out the covenant, and at commencement of every fresh and distinct covenant, say “and that, &c.” or, “and also that, &c." or, " and further, that, &c." if there is any particular proviso, say "provided always, &c." stating it; if there is any mutual understanding or agreement between the parties, say and it is hereby declared and agreed by and between the said parties to these presents, (or if amongst any parties in particular, say so], that, &c. [here state agreement]. In witness whereof, the said parties to these presents have hereunto set their hands and seals, [or, if the indenture be of two parts, "the said A. B. hath hereunto set his hand and seal," or, (1) See also Stadt v. Lill, 9 East, 848, and other precedents, post. (2) The forms of indentures in particular cases will be found under the proper heads, post. In general a contract under seal may be by indenture, articles of agreement, or deed poll, and the common law in no case requires an indenture. The statutes 5 Eliz. c. 4. and 3 W. & M. c. 11., respecting apprentices, are the only regulations that require the deed to be indented. See 1 Sess. Cases, 222. Co. Lit. (3) The observations, as to the utility of (4) Heirs are not bound, unless expressly named, and the contract be under seal, Barber v. Fox, 2 Saund.136. Bac. Ab. Heir and Ancestor, F. Vol. III, Ch. I. General Form of an Indenture between Two or for any Purpose. (2) more Persons Vol. III. Ch. I. if done by an agent, say "the said A. B. by C. D. of, &c. his attorney, law General Form of Articles of Agreement under Seal. (4) Form of a joint and several Covenant by Three or more. (7) The like in another Form. Covenant by two or more persons separately for himself only. (8) The like in another Form, where the Parties are nume rous. fully authorized in that behalf by a certain power of attorney hereunto annexed, or hereupon endorsed, hath hereunto set his hand and seal," (1)] the day and year first above written. Signed, sealed, and delivered, on the A. B. (L. s.) (2) Articles of agreement entered into this 1st day of January, in the year of our Lord 1823, between A. B. of, &c. [here pursue directions as luid down in this respect on entering into a deed indented, ante page 5], for himself (or themselves) his (or their) executors and administrators, and C. D. of, &c. as follows; that is to say, Whereas, &c. [pursue the same directions as have above been pointed out in framing a deed indented, only describing this instrument as an agreement, and not an indenture; and instead of saying "Now this indenture witnesseth," say] "Now this agreement witnesseth, &c." (here state recitals and subject of the agreement, nearly in the same terms as an indenture, ante 5).] In witness, &c. Signed, sealed, and delivered, in the presence of E. F. of, &c. (6) A. B. (L. s.) (5) And the said A. B. and C. do, for themselves jointly, and for their several and respective heirs, executors, and administrators, and each and every of them, severally, separately, and apart from the others of them, doth for himself, his heirs, executors, and administrators, covenant, &c. And the said A. B. and C. do, for themselves, their heirs, executors, and administrators, and each and every of them doth, for himself, his heirs, executors, and administrators, covenant, &c. And the said A., so far as relates to his own acts and deeds only, but not further or otherwise, doth, for himself, his heirs, executors, and administrators; and the said B., so far as relates to his own acts and deeds only, but not further or otherwise, doth for himself, his heirs, executors, and administrators, covenant, &c. And each and every of them, the said A. B., C. D., E. F. and G. H., so far as relates to his or her own acts and deeds only, but not further or otherwise, doth hereby, for himself and herself, and his and her heirs, executors, and administrators - Or, (1) Vid. post, form of a deed executed by an attorney in pursuance of a power. (2) If the party enters into a deed by his attorney or agent, the agent should place his seal, and describe himself as acting in that character, as for A. B. (the principal), C. D. (the agent) (L. s.) If a a partner, having power to bind the firm, thus, "C.D. as well in his own name, as for and on the behalf of the above mentioned E.F." (L. s.) 2 East, 142. Upon a party's executing a aeed, he should place his hand on the seal, and say, "I deliver this as my act and deed," or if an agent, as the act and deed of the above-named A. B.," or if by C.D. a partner," as my act and deed, and also as the act and deed of my partner, C. D.' (3) See post 7, note 6. (4) The form of articles in particular cases will be found under the proper heads, post. (5) The observations as to the execution of a deed indented, will be found here applicable. (6) See post 7, note 6. (7) If by an agreement parties "jointly and severally undertake, promise, and agree to and with the said A. B. that they and each of their executors will on his and their respective parts, &c." this makes each liable, as well for his own acts as for the acts of the others. 7 T.R.352. (8) When it is intended that several parties to an agreement or deed should be liable only for his own act, this mode of framing the sti pulation is necessary. 7 T. R. 352. And each and every of them, the said A. B., C. D., and E. F., so far as Vol. III. Ch. I. relates to his or her own acts and deeds only, and not for the acts and deeds of the others, or any other of them, doth, for himself or herself only, and The like in anhis and her own heirs, executors, and administrators, and in no respect fur- other Form. ther or otherwise, covenant, &c. And the said A. doth hereby, for himself, his heirs, executors, and administrators, and for the said B. his wife, [if the estate be the wife's, add "and her heirs,"] she the said B. hereby consenting thereto, doth, &c. Covenant by Husband, for himself and Wife, she consenting, &c. Know all men by these presents, that I (or "we" as the case may be) General form A. B. of, &c. [and C. D. of, &c. the party or parties bound, (2)] am [or, are] of a Bond. (1) held and firmly bound to E. F. of, &c. [or, and G. H. of, &c., and so on, if one or more obligees] in pounds (double the condition) of lawful money of Great Britain, to be paid to the said E. F. [or, G. H., if two obligees, add "or either of them," or if more than two, add "or any or either of them,"] or his [or, their] certain attorney, executors, administrators, or assigns, for which payment to be well and truly made, I [or, "we," as the case may be] bind myself [or," ourselves, and each of us by himself," (3)] my [or, "our, or either of our," or when more than two, say "our, and every of our,"] heirs (4), executors, and administrators, firmly by these presents, sealed with my [or, "our"] seal [or, " seals,"] dated the in the year of the reign of our Sovereign Lord George the Fourth, by the Grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, &c. and in the year of our Lord 1823. day of Whereas, &c. (here set forth recitals, if any necessary, see ante, page 1. note 3. and then proceed,) Now therefore the condition of this obligation is such, that if the above bounden A. B. [or, party or parties bound] his [or," their "] heirs, executors, or administrators, do and shall, &c. [here set forth the condition of the bond], then this obligation to be void, otherwise to remain in full force and effect. Sealed and delivered, being first duly stamped, in the presence of E. F. of in the county of (6) A. B. (L. s.) (5) [here all the obligors names and Know all men by these presents, that I A. B. of, &c. do owe and am in- Ancient Form debted to C.D. of, &c. the sum of fifty pounds of lawful money of Great of a Single Bill Britain, which I promise to pay unto the said C.D., his executors, admini- for Money. (7) strators, or assigns, at and upon the first day of October next ensuing the date of these presents. In witness whereof I have hereunto set my hand and seal, the 10th day of August A. D. 1733. This makes the bond several as well as joint, and enables the obligee to sue each obligor separately, and to sue the executor of one who dies first at law, 7 T. R. 353. Burr. 1196. Bac. Ab. Obligations. (4) See ante 2, note 1. A. B. (L. s.) (5) The observations relative to the execution of a deed indented will be found here applicable. See ante 5. (6) It is in general adviseable to have some known substantial person as the attesting witness, and to describe him in the attestation, that he may afterwards be more readily found. (7) See form, Jacob's Law Dict. tit. Bill. Know all men by these presents, that I, A. B. of, &c. do owe unto C. D. of, &c. the sum of one hundred pounds of lawful money of Great Britain, to be paid unto the said C. D., his executors, administrators or assigns, on, &c. next ensuing the date hereof; for which payment well and truly to be made, I bind myself, my heirs, executors, and administrators, to the said C. D., his executors, administrators, and assigns, in two hundred pounds of like lawful money, firmly by these presents. In witness whereof I have hereunto set my hand and seal, the 10th day of August a. D. 1733. To A. B. and C. D. gentlemen, attornies of His Majesty's court of King's Bench (or Common Pleas), at Westminster, jointly and severally, or to any other attorney of the same court (or in the Exchequer, "To E.F. &c. naming the four attornies of the Court," attornies of His Majesty's court of Exchequer at Westminster, jointly and severally). These are to desire and authorize you the attornies above named, or any one of you, or any other attorney of the said Court of King's Bench (or Common Pleas) aforesaid, to appear for me (or us) C. D. of, &c. [place of abode and addition] or C. D. of, &c. E. F. &c.) in the said Court, as of this present Hilary term, or any other subsequent term, and then and there to receive a declaration or declarations for me (or us, or one or more of us), against me (or us, jointly or severally,) in an action of debt for £ - for money borrowed [or "on a bond or obligation made and entered into by me (or us) the said C. D. (or the said C.D. and E. F.) to G. H. (or G. H. and I. K.) in the penal sum of £ -], at the suit of G. H., his executors or administrators (or the said G. H. and I. K., their or either of their executors and administrators, or either of them), and thereupon to confess the same action, or else to suffer a judgment by nil dicit, or otherwise, to pass against me (or us, or one or more of us) in the same action, and to be thereupon forthwith entered up against me (or us, or either of us) of record of the said Court of for the said sum of L besides costs of suit. And I (or we) the said C. D. (or the said C. D. and E. F.) do hereby further authorize and empower you the said attornies, or any of you, after the said judgment shall have been entered up as aforesaid, for me (or us), and in my (or our) name (or names), and as my (or our, or one of our act and deed) to sign, seal, and execute a good and sufficient release in the law to the said G. H., his heirs, executors, and administrators (or G. H. and I. K., their or either of their executors or administrators, or either of them), of all and all manner of error and errors, writ and writs of error, and all benefit and advantage thereof, and all misprisions of error and errors, defects, and imperfections whatsoever, had, made, committed, done, or suffered, in, about, touching, or concerning the aforesaid judgment, or in, about, touching, or concerning any writ, warrant, process, declaration, plea, entry, or other proceedings whatsoever, of or any way concerning the same; and for what you the said attornies, or either of you, shall do or cause to be done in the premises, or any of them, this shall be to you and every of you a sufficient warrant and authority. In witness whereof, İ (or we) have hereto set my hand and seal (or, our hands and seals), the day of in the year of the reign of our Sovereign Lord Lord 18 George the Third, by the Grace of God of the United Kingdom of Great Sealed and delivered (being first duly As to the (1) See form, Jacob's Dict. tit. Bill. (3) The notes relating to the execution of a dced indented, ante 6, will be found here applicable, |