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53. If one party does not accede to a but without any conditiou. The
promise as made, the other party is bounty was adjudged to A. and B. not bound by it. Ib.
brought an action of assumpsit a64. In an action of assumpsit, brought gainst him, to recover the half. It
by A. against B. the defendant may was held, that the promise of B. to set off a bord given by A. to C. and A. was a sufficient consideration for assigned by C. to B. before the com- the promise of 1. to B. Briggs v. mencement of the suit.
Tillotson. 8 Johns. Rep. 304. Bebce. 8 Johns. Rep. 132.
57. Where 1. promised to pay a debt 55. 1. gave a promissory note to B. barred by the statute of limitations,
payable in 60 days, and in consid- in certain specific articles, it was eration that C. at ihe request of A. held, that the promise was couditionwould also sign the note as surety, al. and that the plaintiff was bound to 1. undertook and promised to take show that he offered, and was ready up the note when it became due, to receive the specific articles. Bush and to indemnify C. and save him v. Barnard. 8 Johns. Rep. 407. harmless from all damages and costs 58. If A. sets fire to his own fallow which he might sustain by reason of ground, as he may lawfully do, his signing the note, &c. and A. which communicates to, and fires did not take up the note, &r.; but C. the woodland of B. bis neglibour, was sued by B. who recovered judg- no action lies against i. unless ment against him, on which C. was there was some negligenee or mistaken in execution and coininitted conduet in him or his servants, to prison. In an action of assumpsit Clark v. Foot. 8 Johns. Rep. 421. brought by C. against A. the laiter 59. An instrument taken in the adınj. pleaded that C. was discharged ralty, though void as a stipulation, from his imprisonment under the may be good as a contract ; and a execution, by virtue of the act for special action of assumpsit or an the relief of debtors, &c. and had action of debt will lie upon never paid the note, or the judy- Dallas, 122, 3, 4. ment against him, or any part there- 60. Iu Virginia it is not always necof, &c. on demurrer, the plea was essary to sue the maker of a promheld bad, and that the plaintiff was issory note, to entitle the holder to entitled to recover on the promise an action against the indorser. to indemnify. Powell v. Smith. 8 Clarke v. Young. 1 Cranch, 181. Johns. Rep. 249.
61. Quere, whether an aggregate cor66. A. and B. submitted pieces of poration can make an express as
cloth, of their own manufacture, sumpsit, unless specially authorised respectively, to the judges of the by statute. 1 Cranch, 332. county, in order to obtain the boun- 62. After verdict, every assumpsit laid ty given by the act of the legisla- in the declaration is to be taken as tire ; (sess. 31, c. 186, s. 2,) and at an express assumpsit. Ib. 341.
. the time of the submission, A. prom- 63. If a man agrees to do certain ised, that if the cloth presented by work, and does it jointly with anothhim, obtained the bounty, he would er, he is still entitled to recover uppay one half of the bounty to B. de- on the agreement in his own name. ducting the expence of procuring it, Blakeney v. Evans. 2 Cranch, on condition that B. was entitled to 185. present his cloth, it having been fulled and dressed out of the comm- . 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 1. B. was indebted to A. in 421. and to A. to pay him one half of the C. in consideration that 1. would bounty in case A. should obtain it, accept him to be his debtor for 421.
And an assump
due to the said A. by and from B. ise to pay is. Watkins v. Perkins, super se assumpsit, fc. eidem A. fi- at Guildhall. 1 L. Raym. 224. deliter promisit quod ipse easdem 421. 8. If the person, for whose use goods would pay to him.
are furnished, be liable at all, any sit was brought against C. averring other promise by a third person to hiin fore debitorem ipsius 1. without pay that debt must be in writing, saying B. was discharged, and upon otherwise it is void by the statute of non assumpsit, there was a verdict frauds. Matson v. Ivharam. 27. for the plaintiff in K. B. and which Rep. so. was afterwards affirmed in the Ex- 9. A tradesraan delivers goods to A. chequer Chamber. Roe v. Ilaugh. at the request and on the credit of In the Exchequer. 3 Salk. 14. 1 B., who says before the delivery, Salk. 29.
* I will be bound for the payment of 2. A parol promise to pay for goods the money as far as 800l. or 10001,
sold to B. if B. did not pay for them, This promise of B. not being in though made before delivery of the writing, is void by the statute of goods, is a collateral undertaking, frauds, if it appear that credit was within the statute of frauds. Jones given to 1. as well as B. Anderv. Cooper. Cowper, 227. Lofft, son v. Hayman. 1 H. Blackstone, 769.
120. 3. Giving a soldier leave of absence 10. There is no distinction between a
at the instance of a third person, is promise to pay for goods furnished a good consideration for a promise for the use of another made before from him to the captain, to bring they are delivered, and one made him back in ten days or pay a sum
after. 2 Term Rep. 80. of money. Taylor v. Jones. 1 L. 11. A promise in these words, if you Raym. 312.
do not know him, you know me, 4. Assumpsit, in consideration that and I will see you paid,” not being
the plaintiff would accept C. to be in writing, is void by the statute of his debtor for 201. due to him from frauds. 2 Term Rep. 80. A. in loco, A. averred that he did 12. So is this, “ you must supply my accept C. fore debitorem, fe. Ad- mother-in-law with bread, and i judged good after a verdict, without will see you paid.” Jones v. Coopexpress averment that A. was dis- er, cited 2 Term Rep. 80; and also charged. Roe v. Haugh. 1 Suk, in Cowper, 227. 29.
13. A. having sent an order to B. for 3. Where the defendant comes only certain goods, C. undertakes to
in aid of another, so that there is guarantee payment to B., upon an a remedy against both, it is a col- undertaking of D. to indemnify C.; lateral promise, and void by the B. accordingly informs C. that the statute of frauds ; otherwise where goods are preparing, and afterwards the whole credit is given to the de- ships them for A. without giving nofendant. Birkmyr v. Darnell. 1 tice to C. that they are shipped: af. Salk. 27. 2 L. Raym. 1083. 3 Salk. terwards D. desires to recal his in15.
demnity, upon which C. writes to 6. Assumpsit against defendant for B., to know whether he had execut
money lent to a third person, bad e- ed the order, to which no answer is ven after verdict, and judgment ar- given by B. for a considerable time, rested. Marriott v. Lister. 2 Wils. he having gone abread in the inter141.
im. Upon this C., supposing from 7. A promise to see a man paid for the silence of B. that the order was
goods to be sold to, or work to be not executed, gives up his indemni. done for, a third person, is not ty to D. C. still remains liable to binding unless in writing, a prom- B. on his guarantee.
Yours & al. 2 H. Blackstone, 16. Where a parol promise is made 613.
by one person to another for the 14. A. subscribed a memorandum of benefit of a third person, assumpsit
the tenor following, viz. “ The sub- will lie by such third person against scriber hereby engages to Messrs. B. the one making such promise and C. that if they will credit D. a Schermerhorn v. Vanderheyden. 1 sum not exceeding 500 dollars, in Johns. Rep. 139. case he shall not pay the same in 12 17. A declaration on a promise to pay inonihs from this date, I will pay the the debt of another, need not state myself." In consequence
that the promise was in writing; whereof B. and C. sold goods to D. that is matter of evidence; and afto the value of 500 dollars, taking ter the verdict, the court will prehis promissory note for that sum. sume that it was proved to be in Immediately after B. and C. sold writing. Elting v. Vanderlyn. 4 other goods to D, for which he Johns. Rep. 237. gave them another note for 375 18. Where A. applied to B. for goods dollars. Within the year D. paid on credit, and B. refused to let him 200 dollars, which was endorsed on have them without security, on the last mentioned note; and in which 3. drew a promissory note for Three months after the year expired the amount, under which C. wrote, he paid the balance of that note, “ I guaranty the above;" and the and it was cancelled. Soon after- goods were thereupon delivered, warps B. and C. sold other goods this was held to be à collateral unto D. taking his promissory note dertaking of C. but that there was for 379 dollars for the saine without no necessity for any
distinct considany, gụaranty—200 dollars were eration passing directly between B. paid on this last; the balance and C., for being all one entire thereof, and the whole of the note transaction, the delivery of the for 500 dollars remaining unpaid. goods to A. supported the promise In an action by B. and C. against of C. as well as the promise of j. A. upon the memoranduin afore- and that the words value received, said, it was held, that A. was an- in the note, were sufficient evidence swerable for the 500 dollars, and in- of a consideration, on the face of the terest from the expiration of the writing; but if any doubt existed, year : due notice having been given parol evidence was admissible, to him, that the debt which he had show the consideration, or that it guaranteed was unpaid, and the was one original and entire transsame having been demanded of him. action. Leonard v. Vredenburgh. Sturgis et al. v. Robbins. Mass. 8 Johns. Rep. 29. 301.
19. A. an overseer of the poor, had 43. Where A., by writing, for a valu- the management and control of the
able consideration, guaranteed the property of B. a pauper, and receivpayment of a sum of money by B. ed monies belonging to her, in conto C. and B. on demand, refused to sideration of which he promised C. pay at the time, and C. gave notice to pay him a debt due to him from to A. of the failure of payment, and B. This was held a valid underdemanded the amount of him ; it taking, it being an express promise was held, that the demand of pay- in writing, and founded on a valuament of B. and refusal by him, and ble consideration.
Holly v. Hathnotice thereof 'to 1. were sufficient bone. 8 Johns. Rep. 148. to enţitle C. to recover against A. 20. What words import a guarantee on his gyaranty, without a previous or promise to pay the debt of anothsuit against B. Bank of Newyork er, to maintain an action. 3 Dallas, * Livingston. 2 Johns. Cas. 409. 415 to 424.
21. Special assumpsit to guarantee the Merryweather v. Nixan. 8 Term
payment of debts. 4 Dallas, 133, Rep. 186. 226.
5. Áliter, if A. recover in assumpsit 22. Quere, whether he for whose ben- against two. Ibid.
efit a promise is made, may main- 6. A surety who gives a new securitain an action against the promisor ? ty alone to the creditor and has the 1 Cranch, appendix, 429.
old one cancelled, canvot sue the 23. Assumpsit will lie upon a letter of principal for money paid to his use.
credit, by him who trusts a third Taylor v. Higgins. (AFFIDAVI person upon the faith of that letter. I.) 3 East, 169. Luurason v, Mason, 3 Cranch, 7. Where a person will not rely on 493.
the propeise which the law will
raise, but takes a bond as a security, V. Assumpsit for Money paid, laid he cannot resort to an action of asout, c.
sumpsit. Toussaint v. Martinant.
2 Term Rep. 109. 1. Assumpsit for money paid, lạid 8. Therefore if a surety bound with
out, and expended, will not lie, his principal, for payment of money when the money has been paid a- by instalments, take a bond from gainst the express consent of the the principal conditioned for payparty, for whose use it is supposed ment of the amount of the instalto have been paid. Stokes and al. v. ments before the first of them will
Lewis and al. 1 Term Rep. 20. become due, and before that time 2. Nor will it lie on the voluntary the pricipal becomes bankrupt, and payment of another's debt. 8 Terin obtains his certificate, and afterRep. 308. Kilgour v. Finlyson, (tit. wards the instalment bond is dis,
PARTNERS.) 1 H. Black. 155. charged by the surety, he cannot But see Jenkins v. Tucker. (BARON maintain an actiou against the prin
and FEEME III.) 1 H. Black. 90. cipal for money paid to his use. 2 3. But it will lie where one is com- Term Rep. 100
pelled to make a payment for which 9. Where two parishes had been a another is liable. Thus, where the long time united, and had had a goods of a stranger on the premises joint sexton, who was paid by both, of another were distrained by the and afterwards one of them claimed landlord for rent in arrear, and the a right of electing a separate sexstranger was obliged to pay the rent ton, of which they had given notice to redeem them; the court of K. B. to the other, that other parish canheld that the stranger might main- not maintain actiou for money paid, tain assumpsit for money paid to laid out, and expended, to the use the use of the original lessees who of the first parish for their quota of were bound by their cevenants to the sexton's salary. Stokes and al. the landlord, although some of them Lewis and al. i lerin Rep. 20. had to the knowledge of the plain: 10. Neither can the right of the sextiff before he placed his goods on ton be tried in such case without his the premises, assigned their
interest being a party to it. 1 Term Rep. 22. to one of their co-lessees, who was 11. Neither is the payment of the salin the exclusive possession at the ary a joint obligation on the two time. Exall v. Partridge & al. 8 parishes, for the sexton in such case Term Rep. 308.
cannot bring his action against one 4. If A. recover in tort against two of the parishes for the whole suni.
defendants, and levy the whole 1 Term ilep. 22. damages on one, that one cannot re- 12. Upon a request to 1. to accept a cover a moiety against the other in bill, and to draw upon B. for the an action for money paid to his use. saine sum ; if after B.'s refusing to
accept the bill drawn on him by 1., 16. Where persons, engaged in stoek1. pays the bill drawn on him for jobbing, are also concerned in makthe honor of the drawer, he may re- ing real transfers of stock, and the cover back the amount of it from balance is paid upon the whole by the drawer in an action for money one for both of them, a moiety of paid, laid out, and expended. Smith the money paid on the real transac
v. elissen. i Term Rep. 269. tions may be recovered, even under 13. The plaintiffs, together with s. circumstances in which the other
and B. being owners of one ship, part could not. 3 Term Rep. 418. and the defendant of another, a 17. A broker who contracts with othprize was taken, condemned, and ers for the sale of stock at a future shared by agreement between them; day by the authority of his princiafterwards the sentence of condem- pal, who afterwards refuses to make nation was reversed, and restitution good the bargain, cannot, by pay. awarded with costs, which was paid ing the difference to such third per. solely by the plaintiffs, J. and B. sons, maintain an action on an imliaving in the mean time become plied assumpsit against his princihankrupts; an action for money pal for the amount. If the prineipaid to the use of the defendants pal were really possessed of the cannot be brought by the plaintiff's stock so bargained to be sold, such alone for a moiety of the restitution contract is not illegal, within the noney and costs, because it was ei- stat. 7 G. 2. c. 8. against stock-jobther a partnership transaction, when bing, although the broker did not 4. and B. ought to be joined, or disclose the name of his principal not, when separate actions should at the time of the bargain made; be brought hy each of the persons and the puschaser may maintain an paying. Gahan v. Robertson. 2 action for the differenee against the Term Rep. 232.
principal. Child v. Morly, 8 Term 14. If two persons jointly engage in a Rep. 610.
stock-jobbing transaction, and incur 18. An action for money had and relosses, and employ a broker to pay ceived will not lie for a surety, who the differences, and one of them re- has paid the debt of his principal: pay the broker with the privity and but an action for money laid out consent of the other the whole sum, and expended will lie in such case, he may recover a moiety from that even if the same has been paid on other in an action for money paid a usurious contract made by the to his use, notwithstanding statuto principal. 1 Mass. 139. 7. G. 2. c. 8; which avoids and de- 19. Where A. a merchant at W. at clares illegal all stock-jobbing trans- the request of the agent of B. a meractions. Petrie v. Hannay. 3 Term chaut at X. had given his bond at Rep. 418.
the custom house in W. for the doN. The principle of this decision is ties on certain goods consigned to
questioned in Aubert v. Maze. (A- B. and had sent them coast wise to GREEMENTS II.) 2 Pos. of Pull. 371. X. with a certificate proper to entiAnd see also Steers v. Lushle. 6 tle them to a drawback of duties, Term Rep. 61. And Brown v. Tur. which certificate was with held from Term Rep. 730.
B. until he should furnish A. with EXCHANGE, IX.
an indemnity against bis bond : and 15. But in such a case of an illegal that not being done, the certificate
transaction, if one partner pay mo- never was delivered, whereby B. ney for another, without an express lost the drawback-B. was still authority, he cannot recover it back. held liable to pay to A. the amount 3 Term Pep. 418,
of the duties he had paid in dis