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53. If one party does not accede to a
promise as made, the other party is
not bound by it. Ib.
54. In an action of assumpsit, brought
by A. against B. the defendant may
set off a bond given by A. to C. and
assigned by C. to B. before the com-
mencement of the suit. Tuttle v.
Bebee. 8 Johns. Rep. 152.
55. A. gave a promissory note to B.
payable in 60 days, and in consid-
eration that C. at the request of A.
would also sign the note as surety,
A. undertook and promised to take
up the note when it became due,
and to indemnify C. and save him
harmless from all damages and costs
which he might sustain by reason of
his signing the note, &c. and A.
did not take up the note, &c.; but C.
was sued by B. who recovered judg-
ment against him, on which C. was
taken in execution and committed
to prison. In an action of assumpsit
brought by C. against A. the latter
pleaded that C. was discharged
from his imprisonment under the
execution, by virtue of the act for
the relief of debtors, &c. and had
never paid the note, or the judg
ment against him, or any part there-
of, &c. on demurrer, the plea was
held bad, and that the plaintiff was
entitled to recover on the promise
to indemnify. Powell v. Smith. 8
Johns. Rep. 249.

but without any condition. The bounty was adjudged to A. and B. brought an action of assumpsit against him, to recover the half. It was held, that the promise of B. to A. was a sufficient consideration for the promise of A. to B. Briggs v. Tillotson. 8 Johns. Rep. 304. 57. Where A. promised to pay a debt barred by the statute of limitations, in certain specific articles, it was held, that the promise was couditional. and that the plaintiff was bound to show that he offered, and was ready to receive the specific articles. Bush v. Barnard. 8 Johns. Rep. 407. 58. If A. sets fire to his own fallow ground, as he may lawfully do, which communicates to, and fires the woodland of B. bis neghbour, no action lies against . unless there was some negligence or misconduct in him or his servants. Clark v. Foot. 8 Johns. Rep. 421. 59. An instrument taken in the admi ralty, though void as a stipulation, may be good as a contract; and a special action of assumpsit or an action of debt will lie upon it. 2 Dallas, 122, 3, 4.

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60. In Virginia it is not always nec-
essary to sue the maker of a prom-
issory note, to entitle the holder to
an action against the indorser.
Clarke v. Young. 1 Cranch, 181.
61. Quere, whether an aggregate cor-
poration can make an express as-
sumpsit, unless specially authorised
by statute. 1 Cranch, 332.
62. After verdict, every assumpsit laid
in the declaration is to be taken as
an express assumpsit. Ib. 341.
63. If a man agrees to do certain
work, and does it jointly with anoth-
er, he is still entitled to recover up-
on the agreement in his own name.
Blakeney v. Evans. 2 Cranch,

56. A. and B. submitted pieces of cloth, of their own manufacture, respectively, to the judges of the county, in order to obtain the bounty given by the act of the legislature; (sess. 31, c. 186, s. 2,) and at the time of the submission, A. promised, that if the cloth presented by him, obtained the bounty, he would pay one half of the bounty to B. deducting the expence of procuring it, on condition that B. was entitled to present his cloth, it having been fulled and dressed out of the coun- IV. Assumpsit on behalf of third perty, but in all other respects manufactured within it, in the family of B.; and B. made a similar promise to A. to pay him one half of the bounty in case A. should obtain it,

1.

185.

sons.

B. was indebted to A. in 42l. and C. in consideration that A. would accept him to be his debtor for 42.

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3. Giving a soldier leave of absence at the instance of a third person, is a good consideration for a promise from him to the captain, to bring him back in ten days or pay a sum of money. Taylor v. Jones. 1 L. Raym. 312.

4. Assumpsit, in consideration that the plaintiff would accept C. to be his debtor for 201. due to him from A. in loco, A. averred that he did accept C. fore debitorem, &c. Adjudged good after a verdict, without express averment that A. was discharged. Roe v. Haugh, 1 Salk,

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8.

9.

ise to pay is. at Guildhall.

Watkins v. Perkins, 1 L. Raym. 224.

If the person, for whose use goods are furnished, be liable at all, any other promise by a third person to pay that debt must be in writing, otherwise it is void by the statute of frauds. Matson v. Iharam. 21. Rep. 80.

A tradesman delivers goods to A. at the request and on the credit of B., who says before the delivery, "I will be bound for the payment of the money as far as 800l. or 1000l." This promise of B. not being in writing, is void by the statute of frauds, if it appear that credit was given to A. as well as B. Anderson v. Hayman. 1 H. Blackstone,

120.

10. There is no distinction between a promise to pay for goods furnished for the use of another made before they are delivered, and one made after. 2 Term Rep. 80.

11. A promise in these words," if you do not know him, you know me, and I will see you paid," not being in writing, is void by the statute of frauds. 2 Term Rep. 80.

12. So is this, " you must supply my mother-in-law with bread, and i will see you paid." Jones v. Cooper, cited 2 Term Rep. 80; and also in Cowper, 227.

13. A. having sent an order to B. for certain goods, C. undertakes to guarantee payment to B., upon an undertaking of D. to indemnify C.; B. accordingly informs C. that the goods are preparing, and afterwards ships them for A. without giving notice to C. that they are shipped: afterwards D. desires to recal his indemnity, upon which C. writes to B., to know whether he had executed the order, to which no answer is given by B. for a considerable time, he having gone abread in the interim. Upon this C., supposing from the silence of B. that the order was not executed, gives up his indemnity to D. C. still remains liable to B. on his guarantee. Oxley vị

Young & al. 2 H. Blackstone,

613.

44. A. subscribed a memorandum of the tenor following, viz. "The subscriber hereby engages to Messrs. B. and C. that if they will credit D. a sum not exceeding 500 dollars, in case he shall not pay the same in 12 months from this date, I will pay the same myself." In consequence whereof B. and C. sold goods to D. to the value of 500 dollars, taking his promissory note for that sum. Immediately after B. and C. sold other goods to D. for which he gave them another note for 375 dollars. Within the year D. paid 200 dollars, which was endorsed on the last mentioned note; and in three months after the year expired he paid the balance of that note, and it was cancelled. Soon afterwarps B. and C. sold other goods to D. taking his promissory note for 379 dollars for the same without any guaranty-200 dollars were paid on this last; the balance thereof, and the whole of the note for 500 dollars remaining unpaid. In an action by B. and C. against A. upon the memorandum aforesaid, it was held, that A. was answerable for the 500 dollars, and interest from the expiration of the year due notice having been given him, that the debt which he had guaranteed was unpaid, and the same having been demanded of him. Sturgis et al. v. Robbins. 7 Mass.

301.

45. Where A., by writing, for a valuable consideration, guaranteed the payment of a sum of money by B. to C. and B. on demand, refused to pay at the time, and C. gave notice to A. of the failure of payment, and demanded the amount of him ; it was held, that the demand of payment of B. and refusal by him, and notice thereof to A. were sufficient to entitle C. to recover against A. on his guaranty, without a previous suit against B. Bank of Newyork V. Livingston. 2 Johns, Cas. 409.

16. Where a parol promise is made by one person to another for the benefit of a third person, assumpsit will lie by such third person against the one making such promise Schermerhorn v. Vanderheyden. 1 Johns. Rep. 139.

17. A declaration on a promise to pay the debt of another, need not state that the promise was in writing; that is matter of evidence; and after the verdict, the court will presume that it was proved to be in writing. Elting v. Vanderlyn. 4 Johns. Rep. 237.

18. Where A. applied to B. for goods on credit, and B. refused to let him have them without security, on which A. drew a promissory note for the amount, under which C. wrote, "I guaranty the above;" and the goods were thereupon delivered, this was held to be a collateral undertaking of C. but that there was no necessity for any distinct consideration passing directly between B. and C., for being all one entire transaction, the delivery of the goods to A. supported the promise of C. as well as the promise of A. and that the words value received, in the note, were sufficient evidence of a consideration, on the face of the writing; but if any doubt existed, parol evidence was admissible, to show the consideration, or that it was one original and entire transaction. Leonard v. Vredenburgh. 8 Johns. Rep. 29.

19. A. an overseer of the poor, had the management and control of the property of B. a pauper, and received monies belonging to her, in consideration of which he promised C. to pay him a debt due to him from B. This was held a valid undertaking, it being an express promise in writing, and founded on a valuable consideration. Holly v. Rathbone. 8 Johns. Rep. 148.

20. What words import a guarantee or promise to pay the debt of another, to maintain an action. 3 Dallas, 415 to 424.

21. Special assumpsit to guarantee the payment of debts. 4 Dallas, 133,

226.

22. Quere, whether he for whose ben-
efit a promise is made, may main-
tain an action against the promisor ?
1 Cranch, appendix, 429.
23. Assumpsit will lie upon a letter of
credit, by him who trusts a third
person upon the faith of that letter.
Lawrason v. Mason. 3 Cranch,

493.

V. Assumpsit for Money paid, laid
out, &c.

1. Assumpsit for money paid, laid
out, and expended, will not lie,
when the money has been paid a-
gainst the express consent of the
party, for whose use it is supposed
to have been paid. Stokes and al. v.
Lewis and al. 1 Term Rep. 20.
2. Nor will it lie on the voluntary
payment of another's debt. 8 Term
Rep. 308. Kilgour v. Finlyson, (tit.
PARTNERS.) 1 H. Black. 155.
But see Jenkins v. Tucker. (BARON

5.

6.

Merryweather v. Nixan. 8 Term
Rep. 186.

Áliter, if A. recover in assumpsit against two. Ibid.

A surety who gives a new security alone to the creditor and has the old one cancelled, cannot sue the principal for money paid to his use. Taylor v. Higgins. (AFFIDAVIT 1.) 3 East, 169.

7. Where a person will not rely on the promise which the law will raise, but takes a bond as a security, he cannot resort to an action of assumpsit. Toussaint v. Martinant. 2 Term Rep. 100.

8.

Therefore if a surety bound with his principal, for payment of money by instalments, take a bond from the principal conditioned for payment of the amount of the instalments before the first of them will become due, and before that time the pricipal becomes bankrupt, and obtains his certificate, and afterwards the instalment bond is discharged by the surety, he cannot maintain an action against the principal for money paid to his use. Term Rep. 100.

2

Where two parishes had been a long time united, and had had a joint sexton, who was paid by both, and afterwards one of them claimed a right of electing a separate sexton, of which they had given notice to the other, that other parish cannot maintain action for money paid, laid out, and expended, to the use of the first parish for their quota of the sexton's salary. Stokes and al. v. Lewis and al. 1 Term Rep. 20. 10. Neither can the right of the sex

and FEEME III.) 1 H. Black. 90. 3. But it will lie where one is compelled to make a payment for which 9. another is liable. Thus, where the goods of a stranger on the premises of another were distrained by the landlord for rent in arrear, and the stranger was obliged to pay the rent to redeem them; the court of K. B. held that the stranger might maintain assumpsit for money paid to the use of the original lessees who were bound by their cevenants to the landlord, although some of them had to the knowledge of the plaintiff before he placed his goods on the premises, assigned their interest to one of their co-lessees, who was in the exclusive possession at the time. Exall v. Partridge & al. 8 Term Rep. 308.

4. If A. recover in tort against two defendants, and levy the whole damages on one, that one cannot reeover a moiety against the other in an action for money paid to his use.

ton be tried in such case without his being a party to it. 1 Term Rep. 22. 11. Neither is the payment of the salary a joint obligation on the two parishes, for the sexton in such case cannot bring his action against one of the parishes for the whole sum. 1 Term Rep. 22.

12. Upon a request to A. to accept a bill, and to draw upon B. for the saine sum; if after B.'s refusing to

accept the bill drawn on him by A., A. pays the bill drawn on him for the honor of the drawer, he may recover back the amount of it from the drawer in an action for money paid, laid out, and expended. Smith v. Nissen. 1 Term Rep. 269. 13. The plaintiffs, together with A. and B. being owners of one ship, and the defendant of another, a prize was taken, condemned, and shared by agreement between them; afterwards the sentence of condemnation was reversed, and restitution awarded with costs, which was paid solely by the plaintiffs, A. and B. having in the mean time become bankrupts; an action for money paid to the use of the defendants cannot be brought by the plaintiffs alone for a moiety of the restitution money and costs, because it was either a partnership transaction, when A. and B. ought to be joined, or not, when separate actions should be brought by each of the persons paying. Graham v. Robertson. Term Rep. 282. 14. If two persons jointly engage in a stock-jobbing transaction, and incur losses, and employ a broker to pay the differences, and one of them repay the broker with the privity and consent of the other the whole sum, he may recover a moiety from that other in an action for money paid to his use, notwithstanding statute 7. G. 2. c. 8; which avoids and declares illegal all stock-jobbing transactions. Petrie v. Hannay. 3 Term Rep. 418.

2

N. The principle of this decision is
questioned in Aubert v. Maze. (A-
GREEMENTS II.) 2 Bos. & Pull. 371.
And see also Steers v. Lashle. 6
Term Rep. 61.
And Brown v. Tur-

ner. 7 Term Rep. 730.
EXCHANGE, IX.

BILLS OF

15. But in such a case of an illegal transaction, if one partner pay money for another, without an express authority, he cannot recover it back. 3 Term Rep. 418,

16. Where persons, engaged in stock jobbing, are also concerned in making real transfers of stock, and the balance is paid upon the whole by one for both of them, a moiety of the money paid on the real transactions may be recovered, even under circumstances in which the other part could not. 3 Term Rep. 418. 17. A broker who contracts with others for the sale of stock at a future day by the authority of his principal, who afterwards refuses to make good the bargain, cannot, by paying the difference to such third persons, maintain an action on an implied assumpsit against his principal for the amount. If the prineipal were really possessed of the stock so bargained to be sold, such contract is not illegal, within the stat. 7 G. 2. c. 8. against stock-jobbing, although the broker did not disclose the name of his principal at the time of the bargain made; and the puschaser may maintain an action for the difference against the principal. Child v. Morly. 8 Term Rep. 610.

18. An action for money had and received will not lie for a surety, who has paid the debt of his principal: but an action for money laid out and expended will lie in such case, even if the same has been paid on a usurious contract made by the principal. 1 Mass. 139.

19. Where A. a merchant at W. at

the request of the agent of B. a merchant at X. had given his bond at the custom house in W. for the du ties on certain goods consigned to B. and had sent them coast wise to X. with a certificaté proper to entitle them to a drawback of duties, which certificate was withheld from B. until he should furnish A. with an indemnity against his bond: and that not being done, the certificate never was delivered, whereby B. lost the drawback-B. was still held liable to pay to A. the amount of the duties he had paid in dis

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