Page images
PDF
EPUB

a certain price, it is sufficient for plied could not bar the plaintiff of the plaintiff in his declaration to an action for work and labour. aver such request, and that he was Lloyd v. Johnson. 1 Bos. & Pull. ready and willing to receive the 340. inalt and to pay for it according to 46. But in an action for use and occuthe terms of the sale, but that the pation of a lodging, it being shewn defendant refused to deliver it; that the lodging was let with the without averring an actual tender knowledge of the plaintiff for the of the price. Rareson v. Jolinson, purpose of prostitution, the action 1 East, 203.

was held not to be maintainable. 42. If A. agree to buy of B., and B. to Crisp v. Churchill. B. R. Girar

sell to A., goods at a certain price, day v. Richardson. C. P. cited. 1 to be delivered between such a day Bos. f. Pull. 340, 1. and such a day, and B. fail to de- 47. If all the creditors of an insolvent, liver the goods within the time, it is consent to accept a composition for sufficient for A., in declaring on the their demands upon an assignment contract, to aver, that he was, dur- of his effects by a deed of trust, to ing ail the time, and still is, ready which they are all parties, and and willing to receive and pay for one of them, before he executes, obe the goods, without making any al- tain from the insolvent a promissory legation of an actual tender and re- note for the residue of his demand, fusal. Waterhouse v. Skinner. 2 by refusing to execute till such note Bos. fo Pull. 417.

be made, the note is void in law, as a 43. A count in a declaration, stating fraud on the rest of the creditors; that the plaintiff retained the de- and a subsequent proinise to pay

it fendant, who was a carpenter, to is a proinise without consideration, repair a house before a given day; which will not maintain an action. that the defendant accepted the re- Cockshot Bennet. 2 Term Rep. tainer, but did not perform the work 763. (See AGREEMENTS II.) within the tine, per quod the walls 48. For no subsequent promise can of the plaintiff's house were dam- set up a security which is void at aged, cannot be supported; for no its creation. 2 Terin Rep. 763. duty resulted from his situation as 49. If it be only voidable, like a secua carpenter, and it was not stated rity given by an infant, it may be that he was to receive any consid- revived by a subsequent promise. eration, or that he entered upon his 2 Terin Rep. 766. work. Elsee v. Gatward. 5 Term 50. But if a bankrupt, or insolvent, Pep. 143.

after becoming free from his engage41. Where a navigation act empower- ments, voluntarily give security for

ed the company to sue for calls, &c. a former demand, which is only due 6 by action of debt or on the case ;" in conscience, it may be enforced in it was ruled that an action on the a court of law. 2 Term Rep. 765. case in tort lay. Huddersfield Ca. 51. A promise, made by a friend of na! Co. v. Buckley. 7 Term Rep. the bankrupt, when he was on

his 36.

last examination, that in considera(And see Nicholson v. Chapman. tion that the assignees and commis

H. Black. 23*, tit. Lien. Jenkins sioners would forbear to examine v. Tucker. 1 H. Black, 90. Bar- him touching certain sums which on and Feme III.)

he was charged with baving receiv15. Plaintiff was einployed to wash ed, and not accounted for, he would

clothes for defendant who was a pay such sums as the bankrupt had prostitute, knowiug her to be such : received and not accounted for, is the court of C. P. held that the use void, as being against the policy of to which the clothes might be ap- the bankrupt laws. Nerot v. Wd.

lace (in error.) 3 Terin Rep. 17.

52. Quære, If the creditors had con- the purchase of some shares, and

sented to the agreement made by averred that on a day prior to the the assignees, whether that would first general meeting he was lawhave varied the case. 3 Term Rep. fully entitled to so many shares :" 23, 25, 27.

held, that this was a material aver53. A. declared that in consideration ment, and the ground of a non-suit,

that he at the request of B. had as it could not be proved ; though consented and agreed to accept and there was another clause in the act, receive from B. a composition of so by which certain persons by namo much in the pound upon a sum of (of whom the plaintiff was one) money owing from B. to A., in full were made a corporation for the satisfaction and discharge of the purposes of the act; and the money debt, B. promised to pay the com- subscribed was to be divided into so position: the court of C. P. on mo- many equal shares, which were tion in arrest of judgment held that thereby vested in the person so subthis was not a good consideration scribing, &c. Latham v. Barber. to maintain an assumpsit against 6 Term Rep. 67. B., a mere accord not being a ground 58. Where the plaintiff declared that of action. Lynn v. Bruce. 2 H. A., since deceased, was indebted to Black. 317.

him so much, and that after his! 64. The mere relation of landlord and death, in consideration of the pre

tenant is a sufficient consideration mises, and that he, at the instance for the tenant's promise to manage of the defendant, would forbear and a farm in an husbandlike manner. give day of payment of the debt (not

Pourley v. Walker. 5 Term Rep. 373. stating to whom he was to forbear) 55. A breach of trust inay be the ground the defendant promised, &c.: held

of an assumpsit. Smith v. Jameson. on demurrer te be no consideration 5 Term Rep. 603.

for the promise ; for a promise can 56. The vendor of goods abroad, hav- only be sustained on a consideration

ing packed them up by order of the of benefit to the defendant or of debuyer in a particular manner for triment to the plaintiff; and unless smuggling them into this country, there were some person whom the and knowing at the time that plaintiff could have sued for his they were to be smuggled, cannot debt, his forbearance was no detrirecover the value of them against ment to him. Jones v. Ashburnham the buyer, although he was not con

4 East, 455. eerned in the risk of importing the 59. A captain of a troop is not liable goods in this country. Waymell v. for subsistence furnished to the men. Reed. 5 Term Rep. 599. (And see during the time of his absence, and Biggs v. Lawrence. 3 Terin Rep. while

another officer is in the actual 454, tit. PARTNER. Clugas v. Pen- command of the troop, by whom the eluna. 4 Term Rep. 466, tit. Smug- orders for subsistence are issued, GLING.)

and the subsistence money is receive 57. By a navigation act it was enact- ed from government, though such

ed, that on a certain day the first captain was still entitled to a profit general meeting of the proprietors upon the sum issued on that account, should be held, at which the com- and the troop still continued under pany should execute deeds under his military orders. Myrtle v. Bentheir common seal for each distinct

1 East, 135. share, which deeds should respec- 60. The captain of a troop for which tively vest a certain share in each forage is furnished, by the orders of proprietor;" the plaintiff' declared a clerk appointed by such captain, in assumpsit against the defendant is not liable for such forame, ihough for not completing a contract for present with the troop at the time

et ur.

wer.

217.

it not appearing that he had receiv- such children, it is a good consider: ed any money for this purpose from ation for a promise made by them the paymaster, to whom it is is- when they coine of age, to repay the sued by government, and upon whom expence of their maintenance rethe captain is entitled to draw for spectively : especially where the a certain sum regulated by the re- second husband was a man of small turns of the preceding month. Rice substance, and the children bad a v. Chute. 1 Erst, 579.

competent provision to receive when 61. Aliter if he had in effect received they came of age, which was to acthe money:

Rice v. Everitt. 1 cumulate for them in the mean time, East, 583.

and he made no application to 62. A master is not liable upon an chancery for an allowance out of

implied assumpsit to pay for medi- the fund, as he might have done. cal attendance on a servant who has Cooper v. Martin. 4 East, 76. met with an accident in his service. 66. An action upon promises lies by a Wennal v. Adney. 3 Bos. g Pall. ship owner to recover from the

owner of the cargo his proportion And see a learned note by the report- of general average loss incurred by

ers respecting the validity of an ex- sacrificing the tackle belonging to press promise founded on merely a a ship for an unusual purpose, or moral obligation. 3 Bos. f Piill. on an extraordniary occasion of dan249.

ger, for the benefit of the whole 63. The law will not raise an impii- eoncern. Birkley v. Presgrave. 1

ed promise in the parish where a East, 220. pauper is settled to reimburse the 67. A premium paid on an illegal inmoney laid out by another parish, surance, though not in fact known in which he happened to be, in pro- to the parties to be so, cannot be reviding necessary medical assistance covered back. Lubboch v. Potts. for him. Atkins v. Banicell. 2 East, 7 East, 449. 500.

68. If an officer permit a person to go 64. Upon a sale of hops by the sam- at large on his promise to pay the

ple, with a warranty that the bulk debt to the creditor; in consequence of the commodity answered the sam- of which he is obliged to pay the ple, the law does not raise an im- creditor himself; he cannot recovplied warranty that the commodity er back the money from the debtor; should be merchantable, though a being guilty of a breach of duty, fair merchantable price were given; out of which he cannot derive a and therefore if there be a latent cause of action. Pitcher v. Baily. defect then existing in it, unknown 8 East, 171. to the seller, and without fraud on 69. The law will not raise an assumphis part, (but arising from the fraud sit upon a judgment obtained by deof the grower from whom he pur- fault in one of the colonies against chased, such seller is not answer- a party, who upou the face of the able, though the goods turned out proceedings appeared only to have to be unmerchantable. Parkinson been summoned by nailing up a v. Lee. 2 East, 314.

copy of the declaration at the court$5. One who marries a widow having house door,” it not appearing that

children by her former husband is he had ever been present in the colpot bound to maintain such children, ony, or subject to the jurisdiction of though they were maintained by the the colonial court at the time of the widow before her second marriage, suit commenced, or afterwards : alat which time her second husband though by a law of the colony, if a acquired her former means. There- defendant be absent from the island, fore if the second husband maintain and have no attorney, manager, or 0verseer there, saeh inode of summon- his misdemeanor, ôr by an action of ing him shall be deemed good service; debt, according to the nature of the for the absence thereby intended is misfeazance, but never by assumpof one, who has been present, and sit, as an implied promise to do his subject to the jurisdiction ; though duty Mellan v. Eastman, 4 Mass. even if it had been meant to reach 378. strangers to the jurisdiction, it would 78. A. a deputy sheriff, having an exenot have bound them. Buchanan v. cution against B. and having it in Rucher. 9 East, 192.

his power to arrest the debtor's body, 70. A wagering contract for 50 guin- C. in consideration of A.'s forbear

eas, that the plaintiff would not ing to arrest B. promises in writing marry within six years, is prima fa- to deliver him to A. at a certain day cie in restraint of marriage, and and place, that he may be taken therefore void, no circumstance ap- and committed in execution. In pearing to shew that such restraint the mean time B. places in Ci's was prudent and proper in the par- hands a sum of money equal to the ticular instance. Hartley v. Rice. judgment debt, as an indemnity a10 East, 22.

gainst his contract; which sum is 71. A publie teacher of religion can- afterwards, by agreement between not maintain an action to recover B. and C. applied to pay

other exemoney assessed for the support of cutions against B. who is not delivpublic worship, unless he be ordain- ered to A. It was held that no aced over a particular parish. 1 tion lay for A. against C. upon his Mass. 32.

promise, nor for the money paid by 72. No action lies against a public B. to C. Denny v. Lincoln Admini

agent for contracts made by him in istrator. 5 Mass. 385.

that capacity. 1 Mass. 208. 79. A merchant in a foreign port fur73. An action of assumpsit will not nishes necessary supplies to a ves

lie to recover back money paid, sel, which when she left home was where the parties are in pari, wheth- owned by A. and B. but before the er equally guilty or equally inno- supplies were furnished, they had cent. 1 Mass. 65.

parted with all their interest in the 74. A widow having an infant dangh. vessel, although this fact was not

ter possessed in her own right of known to the merchant: It was held property sufficient for her support, in an action brought against A. and is not compellable to maintain her, B. for those supplies, that they were but may have an action against the not liable. Hussey V. Allen et al. daughter, when she comes of age, 6 Mass. 163.

for her board. 2 Mass. 415. 80. Where one engaged as surety for 3. The inhabitants of the county of a seaman, who enlisted aboard a

A. in their corporate capacity, can: vessel of the United States, that such not maintain an action against an seaman should repair on board the inhabitant of another county, in the vessel, and proceed to sea therein, court of common pleas in the coun- or in default thereof that the surety of A. 2 Mass. 514.

ty would be accountable for the 76. If a tradesman, having contracted wages advanced to the seaman ;

to perform a certain undertaking, and the seaman deserted; it was voluntarily leaves it unfinished, he held that no action lay against the can have no action against his em- surety in the name of the officer ployer for the part performed. 2 commanding the vessel ; but the reMass. 147.

medy was exclusively in the namo 77. The remedy against a public offi- of the United States. 'Rainbridge v.

eer for neglect or misbehavior may Doronie. 6 Mass, 233. be by an action of the case alleging s1. The law will not imply au assumo.

V.

sié where there is an express pro- pay the debt when he iş able withmise, nor against the express decla- out distressing his family, is a con: ration of the party, made at the ditional promise, on which an actime of the supposed implied as- tion cannot be sustained, without sumpsit. Whiting v. Sullivan. 7 showing that the defendant was aMass. 10%.

ble to pay without distressing his 82. A forbearance to sue generally is family. Ibid.

a good consideration for a promise 89. Where in an action of assumpsit, to pay the debt of another. "Elting the plaintiff, in his declaration,

Vanderlyn. 4 Johns. Rep. 237. stated, that the defendant, “in con83. A promise without a considera- sideration that the plaintiff before

tion, even though it be in writing, that time sold and conveyed a ceris a nudum pactum. The people v. tain farm, &c. to the defendant, the Howell. 4 Johns. Rep. 296,

defendant then and thereundertook," 81. A. entered on land belonging to &c. it was held that the count was not

B., and, without his kuowledge or sufficient to sustain the action; the authority, cleared it, made improve- promise being founded on a past conments, and erected buildings, &c. sideration; and it not being alleged B. afterwards agreed by parol with that the farm was conveyed at the 1., (against whom he had brought request of the defendant. Comstock an action of ejectment, and recover- y. Smith. 7 Johns. Rep. 87 ed the land,) that he would sell the 90. Where a promise is founded on a land to A. as wild land, or pay him past consideration, it must be laid for the improvements he had made; to have been done at the request of it was held that though the promise the party promising, or, at least, it to sell the land was clearly void by must appear that he was under a the statute of frauds, yet the pro- moral obligation to do the act, or mise to pay for the improvements procure it to be done. Ibid. was not within the statute; but the 91. To constitute a considera, it is not promise to pay for the work and necessary that a benefit should aeimprovements made, without re- crue to the promisor; it is sufficient quest, was nudum pactum, on which that something valuable flows from no action could be maintained. the promisee, and that the promise Frear v. Hardenbergh. 5 Johns. is the inducement to the transaction. Rep. 272.

Violet v. Patton. 5 Cranch, 142. şö. There is neither a legal por mor- 92. Under the statute of frauds of

al obligation on the owner of land Virginia it is not necessary that the to pay for the work and labour done consideration should be expressed in upon it, a person who has entere! writing. That statute only requires without his consent, or any colour the promise to be in writing. Ibid. of right, and held the possession a- 93. A promise by a constable, not to gainst him. Ibid.

sell goods under an execution, with86. A parol promise to pay money as in 30 days is void. Goodale v. Hal

a gift, will not support an action, ridge. 2 Johns. Rep. 193. any more than a promise to deliver 94. So, if the constable promise, if the a chattel as a gift. Pearson v. Pear- defendant will deliver him property son. 7 Johns. Rep. 26.

as security, he will not sell, the 87. The debt of a person discharged promise is without consideration,

under the insolvent act is due in and void. Ibid. conscience, and is a sufficient con- 95. A promise to pay damages for the sideration for a new promise to pay

detention of a certain sum of money, the debt. Scouton v. Eislord. beyond the amount detained, is a Jolins. Rep. 36.

nudum pactum. Phetteplace v. Steere. 28. But a promise by the ivsolvent to 2 Johns. Rep. 412.

« PreviousContinue »