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J. who also held that after the time of credit expired indebitatus assumpsit would lie. 4 East, 149. 13. If goods be bought to be paid for by a bill at two months, and the vendor accordingly draw upon the vendee for the value, who refuses to accept, semb. that the vendee cannot be sued in an action for goods sold and delivered, but upon the special contract only. Dutton v. Solomonson. 3 Bos. & Pull. 582. 14. But certainly he cannot be sued in that form of action till after the expiration of the two months. 3 Bos. & Pull. 582.

15. Where a plaintiff is precluded from recovering upon a promissory note for want of a proper stamp, if he can give other evidence of the consideration of his demand, he may recover on the common counts. East. 58.

1

16. S. P. Tyte v. Jones. Sittings at
Westminster, 1788, cor. Lord Ken-
yon. 1 East, 58, n.
Alves v. Hodg

son.

7 Term Rep. 241.

17. Where the plaintiff declares upon a quantum nuruit for work and labour done, and materials found, it is competent to the defendant even without notice to the plaintiff to prove that the work done was not worth so much as the plaintiff' claims. And if it appear, that the plaintiff had been paid on account as much as the work was worth, he cannot recover. And so it seems, that the defendant may be let into such defence where the contract was for the work to be done at a certain price; at least, if he give the plaintiff previous notice of such defence, that he may be prepared to meet it. And, quære, if the work done be wholly inadequate to answer the purpose for which it was undertaken to be performed, whether the defendant may not be let into such defence even without notice. Basten v. Butter. 7 East,

479.

18. A collector or renter of turnpike

without the forms prescribed by the act of parliament, may still recover, upon a count for an account stated, the amount of the tolls for which he had credited the defendant passing through the gate; no objection being made to the plaintiff's title by the trustees or creditors of the turnpike. And the plaintiff having sent the defendant an account of the tolls due, who not long after sent 5l. inclosed in a letter to the plaintiff in which he stated that she should have the remainder next week, is evidence of such an account stated, and a recognition of the intestate's title to be accounted with for the tolls. Peacock v. Harris. 10 East, 104. 19. Under an agreement in the nature of a charter-party whereby the plaintiff let his ship to freight to the defendants on a voyage from Shields to Lisbon, with convoy; the freight to be paid on right delivery of the cargo; the ship having sailed from Shields with her cargo, and joined convoy at Portsmouth; and after being detained near a month off Lymington, her sailing orders being recalled by the convoy, in consequence of the occupation of Portugal by the enemy; and the defendants have refused to accept the cargo at Portsmouth, to which the ship returned, it was unloaded by the plaintiff, after notice to the defendant, and then was sold by consent of both parties without prejudice: held, that the plaintiff could not recover freight pro rata on demurrage. Leddard v. Lopes. 10 East, 526.

20. Where a seaman shipped for a voyage before the master was ap-. pointed. the shipping paper at the time of the seaman's signing it having a blank space for the master's name, which was filled when the master signed, it was held that the master was liable to the action of the seaman for his wages. Mayo v. Harding. 6 Mass. 300.

tolls, though illegally appointed, 21. Where a son had built a house on

the land of his father, under an expectation that the father would devise the land to him, the father is not answerable to the son, or to his creditors upon a foreign attachment, for the value of the house. Wells et al. v. Banister et al. Trustee. 4 Hass. 514.

22. A. owns a room on the lower floor of a dwelling-house, and the cellar under it; and B. owns the chamber over the room, and the remainder of the house: the roof becoming ruinous, B. makes the necessary repairs held, that no action lies against A. for contribution to the expence of such repairs. Loring v. Beacon. 4 Mass.

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23. IfA. sells merchandize to B. and agrees to receive certain promissory notes in payment; if the notes are afterwards discovered to be forged, and B. was ignorant of the fact, A. cannot afterwards resort to B. for payment for the merchandize: otherwise, if the original bargain was for cash, and the notes were received by the vendor as an accommodation to the vendee. Ellis v. Wild. 6 Mass. $21. 24. In all cases of assumpsit, whatever shews, that a complete satisfaction has been received by the plaintiff before the trial, may be given in evidence under the general issue. Baylies et al. v. Fettyplace et al. 7 Mass. 336.

25. If one of two partners in trade dies, an action of indebitatus assumpsit will lie against the survivor, for goods before sold to the partnership, without taking notice of the partnership, or the death of one, and the survivorship of the other. Goelet v. M'Instry. A Johns. Cas. 405. 26. Where a young man, at the request of his uncle, went to live with him, and the uncle promised to do by him as his own child; and he lived with, and worked for the uncle eleven years, and the uncle said that his nephew should be one of his heirs, and spoke of advancing a sum of money to purchase a farm, as a compensation for his services, but

died without devising any thing to his nephew, or making him any compensation; it was held, that an action, on an implied assumpsit, would lie against the executors, for the work and labour performed by the nephew for the testator. Jacobson v. The Eexecutors of Le Grange. 3 Johns. Rep. 199. 27. Where A. gave to B. a receipt for lumber to the amount of 475 dollars, if it held out on inspection, which sum was to be endorsed on a bond and mortgage from B. to A. and B. assigned over the receipt to C. and a suit was brought in the name of B. against A. for the lumber, as for goods sold and delivered; and notice of the assignment was given to A. who admitted that he had sold the bond and mortgage, (referred to in the receipt of A.) to D., but that he could get the endorsement made on the bond. It was held, that as A. had not shown that the endorsement had actually been made on the bond, agreeably to the stipulation in the receipt; and the parties by their acts having waived the specific appropriation of the amount of the lumber to the payment of the bond, the suit against A. might be maintained for the lumber, as for goods sold and delivered. Eels v. Finch. 5 Johns. Rep. 193.

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28. An action may be maintained by a bastard against the administrators of his putative father, upon a promise made in consideration of services. 4 Dallas, 130.

20. Action of indeb. ass. lies for the claimants of distributive shares in an intestate's estate, against the administrator, without proof of an express assumpsit. 4 Dallas, 147. 30. Ifa promissory note of a third person be indorsed, by the purchaser of goods, to the vendor, as a conditional payment for the goods. Quere. whether the vendor is, in any case. obliged to sue the maker of the note before he can resort to the purchaser of the goods on the original con

tract of sale? Clark v. Young. 1
Crench, 193.

31. A suit against the defendant as
indorser of the note, and a suit a- 3.
gainst him for the goods sold, are
upon distinct and different causes of
action; and the first cannot be
pleaded in bar of the second. I-
bid. 193.

32. It is not necessary for the plain-
tiff to offer to return the note, to en-
title him to an action for the goods
sold. Ib. 194.

33. An action, for goods sold and de-
livered, cannot be maintained by
him who received a note as condi-
tional payment therefor and has
passed away that note.
Harris v.
Johnston. 3 Cranch, 311.
34. If part of the goods were the sole
property of D., and the residue the
sole property of I., and if I. had au-
thority from D. to sell D.'s part, I.
may maintain an action for the
whole in his own name. Ib.
35. Assumpsit, quantum meruit will not
lie for work and labour done in
part fulfilment of a sealed contract,
although the defendant had pre-
vented the plaintiff from finishing
the work according to contract.
Young v. Preston. 4 Cranch, 230.

II. Consideration.

1. Assumpsit to take up a hogshead of brandy in one cellar, and lay it down in another. Breach, that tam negligenter, he put it down in the latter, that it was staved, gist. If H. undertake to do a thing without hire, no action lies for the nonfeasance: but if he enters upon the doing it, action lies for a misfeasance; if through his own neglect or mismanagement, because it is a deceit, but not if by mere accident. Coggs v. Bernard. 1 Salk. 26. 2 L. Raymond, 909.

2. Where money is extorted by duress of goods, assumpsit will lie for it; tender of more than legal interest is good where defendant dies pending time of argument or con

sideration of the court judgment entered nunc pro tunc. Astley v. Reynolds. 2 Str. 915.

Quantum meruit lies for serving as a commissioner on a commission to examine witnesses. Stockhold v. Collington. 1 Salk. 330.

4. Assumpsit to deliver corn on or before the 5th of January, into a barge, to be brought by the plaintiff. Breach that he did not deliver upon the 5th of January is good, and unexceptionable after verdict. Harmon v. Owden. 1 Salk. 140. 1 L. Raym. 620.

5.

6.

7.

Where money is lent on a pledge, the borrower is liable without there is an agreement to the contrary. The South Sea Company v. Duncomb. 2.Str. 919.

An indebitatus assumpsit for money lent to the wife at the request of the husband is a good count. Stephenson v. Hardy. 3 Wils. 388. 2 Black. 872.

Forbearance no consideration to raise an assumpsit, where no cause of action before. Lloyd v. Lee. 1 Str. 94.

8. Assumpsit lies for petty customs. The Mayor of Exeter v. Trimlet.

95.

9. Assumpsit to pay plaintiff 21. per
cent. to procure a purchaser of
plaintiff's place of surveyor of the
baggage of the port of London, is
bad and contrary to the statute a-
gainst sale of offices. Stackpole v.
Earle, Esq. 2 Wils. 133.
10. An action lies for goods sold a-
broad, which are prohibited here, if
the delivery of them be complete a-
broad, though the vendor knows
they are to be run into England.
Holman & others v. Johnston (alias
Newland). Cowper, 341.
11. On a bare leaving a thing in an-
other's custody, the law raises a
promise not grossly to neglect or a-
buse it. Mytton v. Cock.

1099.

2 Str.

12. Administrator makes attorney to receive the intestate's debts; a will appearing, the letter of administra

tion is repealed. Executor may bring indebitatus assumpsit against the attorney for money received to his use, quia administration void. Jacob v. Allen. 1 Salk. 27. 13. Assumpsit will lie against the as

signees of a bankrupt for a creditor's share under an order of the commissioners for a dividend. Brown v. Bullen. 1 Douglas, 407. 14. Assumpsit by executor on promise to testator, statute of limitations pleaded, and held that a promise to the executor within six years could not be given in evidence. Dean v. Crane. 1 Salk. 28. 2 L. Raym. 1101. Green v. Crane. 15. Assumpsit, in consideration the officer would restore goods taken on a scire facias to pay the debt, a good consideration. Love's case. 1 Salk. 28.

16. Indebitatus assumpsit lies upon an order to pay money under the authority of an act of parliament. Rann v. Green. 1 Douglas, 402. Brown v. Bullen. Ibid. 407. 17. Assumpsit will lie for not paying the consideration of an assignment of an uncertain debt. Moulsdale v. Birchall. 2 Blackstone, 820. 18. If one recovers money mala fide by suit in an inferior court, indebitatus assumpsit will lie in K. B. to make him refund it back. Moses & Macpherlan. 1 Blackstone, K.

B. 219.

19. Indebitatus assumpsit will lie on the judgment of a foreign court without declaring upon, or proving, the grounds and cause of action on which the judgment went. Crawford v. Whitall. Plaistow v. Van Uxem, Cam. Scacc. 1 Douglas, 4. 20. Promise of a bribe to a sheriff's officer to induce him to take bail, is an illegal consideration, and will not maintain assumpsit. Smith & Stotesbury. 1 Black. K. B. 201. 3 Burr. 924.

21. Upon a count in assumpsit, if no other person is mentioned than the plaintiff and defendant, it shall be taken that the defendant promised,

though his name is not expressly set as the nominative case to the word assumpsit. Sheer v. Brown. 2 L. Raym. 899. Salk. 26. 3 Salk.

17.

22. Contract to pay and deliver is a contract to transfer the property, not merely to give the possession, and assumpsit lies. Herbert et Alii

v. Burstow. 2 L. Raymond, 895. Salk. 25.

23. The delivery of a note by which a stranger promises to pay the deliverer money, is a good consideration for a promise; and in an action thereon, the plaintiff need not prove upon what consideration the note was made. Meredith v. Chute. 2 L. Raym. 759. Salk. 25. 24. Promise to pay the husband so much when his wife should be a lady, good. Rands v. Tripp. 3 Salk.

65.

25. Indebitatus assumpsit lies for money won at play. Eggleton v. Lewin. 3 Salk. 175. 1 Sulk. 23. Sed q. 26. Money won at play cannot be recovered from the loser on an indebitatus assumpsit; on an assumpsit upon mutual promises it may. Smith v. Airey. 2 L. Raym. 1034. 3 Salk. 14, 175. Bovey v. Castleman. 1 L. Raym. 69. Same Point.

27. Assumpsit to run a horse at such time as the plaintiff shall appoint, and he sets forth that he appointed such a day, good. Scott v. Hogson. 3 Salk. 345.

28. If a man takes goods to which he

has no right and sells them, the owner may wave the tort, and recover the price of which they were sold in an indebitatus assumpsit for money had and received. Lamine v. Dorrell. 2 L. Raym. 1216. 29. Q. Whether an indebitatus assumpsit for divers goods, merchandise, and things, is not too uncertain. Spark v. Jobber. 2 L. Raym. 1450. 30. Assumpsit will lie for a fine assess

ed on admission to a copyhold estate. Grant v. Astle. 2 Douglas, 728. In such action you must prove that the sum laid to have been assessed,

does not exceed two years value of the estate, because you cannot recover a less sum than that laid in the declaration. Ibid. 731. The declaration in such action may

state generally, that the defendant was indebted to the plaintiff in such a sum (viz. the amount of all the fines due,) for reasonable fines due and payable to him. Whitehead v. Hunt. 2 Douglas, 727. So, a general indebitatus assumpsit will lie for tolls. Ibid. 728. 31. J. W. clerk to plaintiff, a brewer, and receiving money and negotiable notes from the customers in the usual course of trade for plaintiff's use, paid several sums to defendant, amounting to 4591. 4s. 4d. upon chances of the coming up of tickets in the state lottery of 1772, contrary to the act of parliament. The plaintiff had given a release to his clerk and his sureties for the said money, no part of which came to his use, nor was returned on demand. On a verdict for plaintiff and case reserved whether he had a right to recover, and whether the elerk could be a witness, the court determined in the affimative in both points. Clarke v. Johnson & Co. Loft, 756.

32. Assumpsit will not lie for a past consideration unless it was at the request of the party. The effect of the statutes of jeofails as to judgment by default. Hayes v. Warren. 2 Str. 933.

33. A stranger to the consideration cannot maintain any action. Crow v. Rogers. 1 Str. 592.

34. Where one thing is to be the consideration of the other, though there be mutual promises, performance must be averred and proved. Callonel v. Briggs. 1 Salk. 112. 33. Assumpsit will not lie against a person who receives as a collector in a legal office, viz. as excise officer, and has paid over. Whitebread v. Brooksbanks. Lofft, 529. It may be brought where there is a tort, which is a proper ground for

trover, or trespass. Feltham and others v. Tyrrel and others. Lofft,

207.

36. A. having proposed to sell goods to B. gave him a certain time at his request to determine whether he would buy them or not; B. within the time determined to buy them, and gave notice thereof to A.; yet A. was not liable in an action for not delivering them: for B. not being bound by the original contract, there was no consideration to bind A. Cooke v. Oxley. 3 Term Rep.

653.

37. If A. and B. agree to exchange horses, and B. give a sum of money to A. to bind the bargain, A. may maintain an action against B. for not delivering his horse, without alleging any delivery of, or offer to deliver his own to B.: for the payment of earnest money vests the property of the plaintiff's horse in B. Bach v. Owen. 5 Term Rep.

409.

38. But in such an action A. must allege a demand on B. for his horse; stating that B. did not deliver,though often requested so to do, is not suffi cient. 5 Term Rep. 409.

39. In an action on the case for not delivering corn at S. pursuant to an agreement, whereby the defendant, in consideration that the plaintiff' had bought of him a certain quantity at a fixed price, undertook to deliver it to the plaintiff at S. within one month from the time of the sale, the plaintiff must aver a readiness to pay the price or what is equivalent thereto. Morton v. Lamb. 7 Term Rep. 125.

40. In such a case the delivery of the corn and the payment of the price were concurrent acts to be done at the same time; and each must aver performance or a readiness to perform his part before he can maintain an action against the other. 7 Term Rep. 125.

41. In an action for the non-delivery of malt, which the defendant had undertaken to deliver on request at

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