a certain price, it is sufficient for the plaintiff in his declaration to aver such request, and that he was ready and willing to receive the malt and to pay for it according to the terms of the sale, but that the defendant refused to deliver it; without averring an actual tender of the price. Rawson v. Johnson. 1 East, 203.

42. If A. agree to buy of B., and B. to sell to A., goods at a certain price, to be delivered between such a day and such a day, and B. fail to deliver the goods within the time, it is sufficient for A., in declaring on the contract, to aver, that he was, during all the time, and still is, ready and willing to receive and pay for the goods; without making any allegation of an actual tender and refusal. Waterhouse v. Skinner. 2 Bos. & Pull. 417.

43. A count in a declaration, stating that the plaintiff retained the defendant, who was a carpenter, to repair a house before a given day; that the defendant accepted the retainer, but did not perform the work within the time, per quod the walls of the plaintiff's house were damaged, cannot be supported; for no duty resulted from his situation as a carpenter, and it was not stated that he was to receive any consideration, or that he entered upon his work. Elsee v. Gatward. 5 Term Rep. 143.

41. Where a navigation act empowered the company to sue for calls, &c. "by action of debt or on the case ;” it was ruled that an action on the case in tort lay. Huddersfield Canal Co. v. Buckley. 7 Term Rep.

plied could not bar the plaintiff of an action for work and labour. Lloyd v. Johnson. 1 Bus. & Pull.

340.

46. But in an action for use and occupation of a lodging, it being shewn that the lodging was let with the knowledge of the plaintiff for the purpose of prostitution, the action was held not to be maintainable. Crisp v. Churchill. B. R. Girarday v. Richardson. C. P. cited. 1 Bos. & Pull. 340, 1.

47. If all the creditors of an insolvent, consent to accept a composition for their demands upon an assignment of his effects by a deed of trust, to which they are all parties, and one of them, before he executes, obtain from the insolvent a promissory note for the residue of his demand, by refusing to execute till such note be made, the note is void in law, as a fraud on the rest of the creditors; and a subsequent promise to pay it is a promise without consideration, which will not maintain an action. Cockshot v. Bennet. 2 Term Rep. 763. (See AGREEMENTS II.) 48. For no subsequent promise can set up a security which is void at its creation. 2 Term Rep. 763. 49. If it be only voidable, like a security given by an infant, it may be revived by a subsequent promise. 2 Term Rep. 766.

50. But if a bankrupt, or insolvent, after becoming free from his engagements, voluntarily give security for a former demand, which is only due in conscience, it may be enforced in a court of law. 2 Term Rep. 765. 51. A promise, made by a friend of the bankrupt, when he was on his last examination, that in consideration that the assignees and commissioners would forbear to examine him touching certain sums which he was charged with having received, and not accounted for, he would pay such sums as the bankrupt had received and not accounted for, is void, as being against the policy of the bankrupt laws. Nerot v. Wallace (in error.) 3 Term Rep. 17.

52. Quære, If the creditors had consented to the agreement made by the assignees, whether that would have varied the case. 3 Term Rep. 23, 25, 27. 53. A. declared that in consideration that he at the request of B. had consented and agreed to accept and receive from B. a composition of so much in the pound upon a sum of money owing from B. to A., in full satisfaction and discharge of the debt, B. promised to pay the composition: the court of C. P. on motion in arrest of judgment held that this was not a good consideration to maintain an assumpsit against B., a mere accord not being a ground of action. Lynn v. Bruce. 2 H. Black. 317.

54. The mere relation of landlord and tenant is a sufficient consideration for the tenant's promise to manage a farm in an husbandlike manner. Powley v. Walker. 5 Term Rep. 373. 55. A breach of trust may be the ground of an assumpsit. Smith v. Jameson. 5 Term Rep. 603.

56. The vendor of goods abroad, having packed them up by order of the buyer in a particular manner for smuggling them into this country, and knowing at the time that they were to be smuggled, cannot recover the value of them against the buyer, although he was not concerned in the risk of importing the goods in this country. Waymell v. Reed. 5 Term Rep. 599. (And see Biggs v. Lawrence. 3 Term Rep. 454, tit. PARTNER. Clugas v. Peneluna. 4 Term Rep. 466, tit. SMUGGLING.)

57. By a navigation act it was enacted, that on a certain day the first general meeting of the proprietors should be held, at which the company should execute deeds under their common seal for each distinct share," which deeds should respectively vest a certain share in each proprietor;" the plaintiff declared in assumpsit against the defendant for not completing a contract for

the purchase of some shares, and averred that on a day prior to the first general meeting" he was lawfully entitled to so many shares :" held, that this was a material averment, and the ground of a non-suit, as it could not be proved; though there was another clause in the act, by which certain persons by name (of whom the plaintiff was one) were made a corporation for the purposes of the act; and the money subscribed was to be divided into so many equal shares, which were thereby vested in the person so subscribing, &c. Latham v. Barber.

6 Term Rep. 67. 58. Where the plaintiff declared that A., since deceased, was indebted to him so much, and that after his death, in consideration of the premises, and that he, at the instance of the defendant, would forbear and give day of payment of the debt (not stating to whom he was to forbear) the defendant promised, &c.: held on demurrer te be no consideration for the promise; for a promise can only be sustained on a consideration of benefit to the defendant or of detriment to the plaintiff; and unless there were some person whom the plaintiff could have sued for his debt, his forbearance was no detriment to him. Jones v. Ashburnham et ux. 4 East, 455.

59. A captain of a troop is not liable for subsistence furnished to the men. during the time of his absence, and while another officer is in the actual command of the troop, by whom the orders for subsistence are issued, and the subsistence money is received from government, though such captain was still entitled to a profit upon the sum issued on that account, and the troop still continued under his military orders. Myrtle v. Beaver. 1 East, 135.

60. The captain of a troop for which forage is furnished, by the orders of a clerk appointed by such captain, is not liable for such forage, though present with the troop at the ti

it not appearing that he had received any money for this purpose from the paymaster, to whom it is issued by government, and upon whom the captain is entitled to draw for a certain sum regulated by the returns of the preceding month. Rice v. Chute. A East, 579.

61. Aliter if he had in effect received the money. Rice v. Everitt. 1 East, 583. 62. A master is not liable upon an implied assumpsit to pay for medical attendance on a servant who has met with an accident in his service. Wennal v. Adney. 3 Bos. & Pall.

217.

And see a learned note by the reporters respecting the validity of an express promise founded on merely a moral obligation. 3 Bos. & Pull.

249.

63. The law will not raise an implied promise in the parish where a pauper is settled to reimburse the money laid out by another parish, in which he happened to be, in providing necessary medical assistance for him. Atkins v. Banwell. 2 East,

505.

64. Upon a sale of hops by the sample, with a warranty that the bulk of the commodity answered the sample, the law does not raise an implied warranty that the commodity should be merchantable, though a fair merchantable price were given; and therefore if there be a latent defect then existing in it, unknown to the seller, and without fraud on his part, (but arising from the fraud of the grower from whom he purchased,) such seller is not answerable, though the goods turned out to be unmerchantable. Parkinson v. Lee. 2 East, 314. 95. One who marries a widow having children by her former husband is not bound to maintain such children, though they were maintained by the widow before her second marriage, at which time her second husband acquired her former means. Therefore if the second husband maintain

such children, it is a good consider ation for a promise made by them when they come of age, to repay the expence of their maintenance respectively especially where the second husband was a man of small substance, and the children bad a competent provision to receive when they came of age, which was to accumulate for them in the mean time, and he made no application to chancery for an allowance out of the fund, as he might have done. Cooper v. Martin. 4 East, 76. 66. An action upon promises lies by a ship owner to recover from the owner of the cargo his proportion of general average loss incurred by sacrificing the tackle belonging to a ship for an unusual purpose, or on an extraordniary occasion of danger, for the benefit of the whole concern. Birkley v. Presgrave. 1 East, 220.

67.

A premium paid on an illegal insurance, though not in fact known to the parties to be so, cannot be recovered back. Lubboch v. Potts. 7 East, 449.

68. If an officer permit a person to go at large on his promise to pay the debt to the creditor; in consequence of which he is obliged to pay the creditor himself; he cannot recover back the money from the debtor; being guilty of a breach of duty, out of which he cannot derive a eause of action. Pitcher v. Baily.

8 East, 171.

69. The law will not raise an assumpsit upon a judgment obtained by de

fault in one of the colonies against a party, who upon the face of the proceedings appeared only to have been summoned “ by nailing up a copy of the declaration at the courthouse door," it not appearing that he had ever been present in the colony, or subject to the jurisdiction of the colonial court at the time of the suit commenced, or afterwards: although by a law of the colony, if a defendant be absent from the island, and have no attorney, manager, or o

verseer there, such mode of summnoning him shall be deemed good service; for the absence thereby intended is of one, who has been present, and subject to the jurisdiction; though even if it had been meant to reach strangers to the jurisdiction, it would not have bound them. Buchanan v. Rucher. 9 East, 192.

70. A wagering contract for 50 guineas, that the plaintiff would not marry within six years, is prima facie in restraint of marriage, and therefore void, no circumstance appearing to shew that such restraint was prudent and proper in the particular instance. Hartley v. Rice. 10 East, 22.

71. A public teacher of religion cannot maintain an action to recover money assessed for the support of public worship, unless he be ordained over a particular parish. Mass. 32.

1

72. No action lies against a public agent for contracts made by him in that capacity. 1 Mass. 208. 73. An action of assumpsit will not lie to recover back money paid, where the parties are in pari, whether equally guilty or equally innocent. 1 Mass. 65.

74. A widow having au infant daughter possessed in her own right of property sufficient for her support, is not compellable to maintain her, but may have an action against the daughter, when she comes of age, for her board. 2 Mass. 415. 75. The inhabitants of the county of A. in their corporate capacity, cannot maintain an action against an inhabitant of another county, in the court of common pleas in the county of A. 2 Mass. 544.

76. If a tradesman, having contracted to perform a certain undertaking, voluntarily leaves it unfinished, he can have no action against his employer for the part performed. 2 Mass. 147.

77. The remedy against a public offi

cer for neglect or misbehavior may be by an action of the case alleging

his misdemeanor, or by an action of debt, according to the nature of the misfeazance, but never by assumpsit, as an implied promise to do his duty M-Mellan v. Eastman. 4 Mass.

378.

In

78. A. a deputy sheriff, having an execution against B. and having it in his power to arrest the debtor's body, C. in consideration of A.'s forbearing to arrest B. promises in writing to deliver him to A. at a certain day and place, that he may be taken and committed in execution. the mean time B. places in C.'s hands a sum of money equal to the judgment debt, as an indemnity against his contract; which sum is afterwards, by agreement between B. and C. applied to pay other executions against B. who is not delivered to A. It was held that no action lay for A. against C. upon his promise, nor for the money paid by B. to C. Denny v. Lincoln Admin istrator. 5 Mass. 385.

79. A merchant in a foreign port furnishes necessary supplies to a vessel, which when she left home was owned by A. and B. but before the supplies were furnished, they had parted with all their interest in the vessel, although this fact was not known to the merchant: It was held in an action brought against . and B. for those supplies, that they were not liable. Hussey v. Allen et al. 6 Mass. 163.

80. Where one engaged as surety for a seaman, who enlisted aboard a vessel of the United States, that such seaman should repair on board the vessel, and proceed to sea therein, or in default thereof that the surety would be accountable for the wages advanced to the seaman ; and the seaman deserted; it was held that no action lay against the surety in the name of the officer commanding the vessel; but the remedy was exclusively in the name of the United States. Rainbridge v. Downie. 6 Mass. 253.

81. The law will not imply au assumy

sit where there is an express promise, nor against the express declaration of the party, made at the time of the supposed implied assumpsit. Whiting v. Sullivan. 7

Mass. 107.

82. A forbearance to sue generally is a good consideration for a promise to pay the debt of another. Elting v. Vanderlyn. 4 Johns. Rep. 237. $3. A promise without a consideration, even though it be in writing, is a nudum pactum. The people v. Howell. 4 Johns. Rep. 296. 84. A. entered on land belonging to B., and, without his knowledge or authority, cleared it, made improvements, and erected buildings, &c. B. afterwards agreed by parol with A., (against whom he had brought an action of ejectment, and recovered the land,) that he would sell the land to A. as wild land, or pay him for the improvements he had made; it was held that though the promise to sell the land was clearly void by the statute of frauds, yet the promise to pay for the improvements was not within the statute; but the promise to pay for the work and improvements made, without request, was nudum pactum, on which no action could be maintained. Freary. Hardenbergh. 5 Johns. Rep. 272.

85. There is neither a legal nor moral obligation on the owner of land to pay for the work and labour done upon it, a person who has entered without his consent, or any colour of right, and held the possession against him. Ibid.

86. A parol promise to pay money as a gift, will not support an action, any more than a promise to deliver a chattel as a gift. Pearson v. Pearson. 7 Johns. Rep. 26.

87. The debt of a person discharged under the insolvent act is due in conscience, and is a sufficient consideration for a new promise to pay the debt. Scouton v. Eislord. 7 Johns. Rep. 36. 28. But a promise by the insolvent to

pay the debt when he is able without distressing his family, is a conditional promise, on which an action cannot be sustained, without showing that the defendant was able to pay without distressing his family. Ibid.

89. Where in an action of assumpsit, the plaintiff, in his declaration, stated, that the defendant," in consideration that the plaintiff before that time sold and conveyed a certain farm, &c. to the defendant, the defendant then and there undertook," &c. it was held that the count was not sufficient to sustain the action; the promise being founded on a past consideration; and it not being alleged that the farm was conveyed at the request of the defendant. Comstock v. Smith. 7 Johns. Rep. 87 90. Where a promise is founded on a past consideration, it must be laid to have been done at the request of the party promising, or, at least, it must appear that he was under a moral obligation to do the act, or procure it to be done. Ibid. 91. To constitute a considera, it is not necessary that a benefit should accrue to the promisor; it is sufficient that something valuable flows from the promisee, and that the promise is the inducement to the transaction. Violet v. Patton. 5 Cranch, 142. 92. Under the statute of frauds of Virginia it is not necessary that the consideration should be expressed in writing. That statute only requires the promise to be in writing. Ibid. 93. A promise by a constable, not to sell goods under an execution, within 30 days is void. Goodale v. Halridge. 2 Johns. Rep. 193.

94. So, if the constable promise, if the

defendant will deliver him property as security, he will not sell, the promise is without consideration, and void. Ibid.

95. A promise to pay damages for the

detention of a certain sum of money, beyond the amount detained, is a nudum pactum. Phetteplace v. Steere. 2 Johns. Rep. 412.