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![handle is hein.slavery/ssactsengr0562 and id is 1 raw text is: 1134
MINES V. SCULTHORPE
2 CAMP. 216.
Saturday, July 8, 1809.
MINES V. SCULTHORPE.
(If B. by a written guarantee undertake to A. to answer for the payment of goods to
be sent by him to C., A. cannot maintain indebitatus assuiapsit against B. for
the price of goods sent to C. accordingly, but must declare specially on the
guarantee.)
Indebitatus assumpsit for goods bargained and sold ; and for goods sold to the
defendant, and, at his request, delivered to one Cecil Hicks; with the usual money-
counts. Plea, the general issue.
Hicks, a retail shopkeeper, applied to the plaintiff, a wholesale dealer, to be
furnished with a quantity of cheese in the way of his trade, and referred him to the
defendant as a person who would be accountable for what should be sent. The
plaintiff thereupon wrote a letter to the defendant, requiring to know whether he
consented to this. The defendant returned the following answer
[216] Sir,
In reply to your's of yesterday respecting Mr. Hicks, now informn you, I will
answer for the payment of goods sent to him to the amount of £100 for six months.
Hope, after that, you will not think it necessary for me to be longer accountable,
as you will, of course, become well acquainted with his manner of doing business,
and that that, as well as his payments, will be quite satisfactory.
I am, &c.
Goods were accordingly supplied by the plaintiff to Hicks, for the value of which
the present action was brought.
Garrow and Lawes for the defendant contended, that under these circumstances
i'ndebitatus assumpsit would not lie, and the plaintiff ought to have declared specially
upon the guarantee. The goods were not sold to the defendant; but to Hicks.
He was the real debtor, and the other was only a surety. There was no debt or
duty, therefore, on the part of the defendant, in consideration of which the law
raised a promise. The declaration should have stated that, in consideration that
the plaintiff would deliver the goods to Hicks, the defendant undertook to guarantee
the payment of them.
The Attorney-General, contra, argued, that as the defendant had'undertaken to
answer for the payment of goods sent, there was a contract of sale with him, and
the price [217] of the goods so sent was a debt for which he was liable, and for the
payment of which the law raised a promise. According to the contract between
the parties, the consideration moving from the plaintiff was executed ; and the
breach of the defendant's undertaking lay in the non-payment of money. There-
fore, iaidcbilatus assumpsit was the proper remedy.
Lord Ellenborough.-The goods were certainly sold to Hicks. The defendant's
undertaking is collateral, and ought to have been declared on specially.
Plaintiff nonsuited.*
The Attorney-General and Marryatt for the plaintiff.
Garrow and Lawes for the defendant.
[Attornies, Wharton and Langham.]
[218] Monday, July 10, 1809.
SNOOK AND ANOTHER V. DAV;DSON ANr, ANOTHER.
(A., a merchant, at different times employs C., an insurance broker to effect policies
of insurance for him ; C., without A.'s concurrence, employs B., another in-
bill-above the value of £5-payable at a certain time after date-expressed to
be for value received-and lost within the time limited for payment.-The 3 & 4
Ann. c. 9, having given the like remedies on notes as were then in use on inland bills,
may be considered as having extended it to the makers of promissory notes of a like
description.
As to the mode of proceeding to enforce payment of a lost bill in equity, vide
1 Ves. 341 ; 5 Ves. jun. 338; 6 Ves. jun. 812.
* See all the cases upon this subject, collected and commented upon, 1 Williiams's
Saunders, 211 (2).](ViewImageLocal?handle=hein.slavery/ssactsengr0562&div=1&collection=&method=preview&ext=.png&size=3)