96. The mere sale and delivery of a promissory note, without any indorsement or assignment, will not be sufficient to maintain an action brought by the purchasor in his own name, where no other consideration for an assumpsit is laid in the declaration. 1 Dallas, 370.

97. An action cannot be maintained for services, if the party acted merely in expectation of a legacy. 4 Dallas, 111, 130.

98. A creditor cannot maintain an action for a dividend against the voluntary trustees of his creditor, unless he has subscribed the conditions of the trust. 4 Dallas, 224. 99. Quære, whether the holder of a promissory note in Virginia, cannot maintian an action for money had and received, against a remote indorser ? Dunlop v. Silver. 1 Cranch, 367. 100. Assumpsit will not lie upon a policy of insurance under the corporate seal, unless a new consideration be averred. Insurance Co. of Alexandria v. Young. 1 Cranch, 332.

III. Assumpsit on express promises, &c.

1. A promise to marry good on assumpsit, and the statute of frauds and perjuries extends only to contracts in consideration of marriage, and not contracts to marry. Cork v. Baker. 1 Str. 34.

2. An action lies against a woman for a breach of promise of marriage. A promise to marry which does not ascertain the time, is a promise to marry in a reasonable time upon request.

On a promise to marry upon request, the request need not be made with a parson.

In an action on a promise to marry upon request, a declaration which shews that the defendant has married another person who is living, need, not state a request. Harrison v. Cage and his wife. 1 L. Raym. 386. 1 Salk. 24.

3. Case, &c. by a feme sole, in which

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she declared, quod cum, she had agreed and promised to marry the defendant, he in consideration thereof, promised to marry her. Upon non assumpsit pleaded, the cause was tried before Holt, C. J. and the promise of the marriage was proved, but no actual promise on the woman's side; yet he held there was sufficient evidence to prove, that the woman likewise promised, because she carried herself as one consenting and approving the promise of the man. Hutton v. Mansell. Salk. 16.

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Promise for promise is a good consideration in an action on an assumpsit, without an averment of the performance of plaintiff's promise. Martindale v. Fisher. 1 Wils. 88.

Forbearance to arrest a debtor until after a particular day, is a good consideration for a promise by a third person to the debt on or pay before the day. Waters v. Glassop. 1 L. Raym. 357.

Assumpsit, defendant pleads in abatement, that he was bailiff, and that plaintiff ought to bring account. Where express promise is, assumpsit lies as well as account. Wilkin v. Willin. 1 Salk. 9.

Promise by the defendant to pay a judgment debt obtained against him, in consideration that the plaintiff would stay execution thereon, is no ground to raise an assumpsit. Otherwise, if the promise be by a third person. Anonymous. Cowp. 129. 9. If the declaration contain a count on a special agreement, and also

general counts, though the plaintiff fail in proving the special agreement, he may go into evidence on the general counts. Payne v. Bacomb. 2 Douglas, 651. 10. Indebitatus assumpsit for money received ad computandum, aided by Poulter v. Cornwall. 1

verdict. Salk. 9. 11. A promise to pay as much as the party habere meruit, upon an executory consideration shall be construed as a promise to pay as much as he habere meruit: and so shall account upon it, at least, after verdiet. Moverly v. Lee. 2 L. Raym. 1223. 2 Salk. 558.

12. Upon a contract to do an act upon the first of two events, a performance may be enforced, though it is not called for until both have happened. Loggin v. Comitem Orrery. 1 L. Raym. 133.

13. An action upon an insimul computasset must shew the time when, and the place where, the account was stated. Desborough v. Kelby. 1 L. Raym. 533.

14. In assumpsit on a policy of insurance, as for a total loss, an average loss may be recovered. Whitehead

v. Hunt. 2 Douglas, 732. 15. Where an action is brought for more than the defendant promised to pay, it is not good. Butcher v. Andrews. 3 Salk. 15. 1 Salk. 23. 16. An indebitatus assumpsit lies for nursing a stranger at the defendant's request.

A man cannot in the same declaration demand several satisfactions for the same thing. Hart v. Langfit. Hart v. Langfit. 2 L. Raym. 841. 17. Upon mutual independent contracts in the same instrument, either party may maintain an action before performance of his part. Trench, executor of Squire v. Trewin. 1 L. Raym. 124.

18. A promise to pay a debt upon which the statute of limitations has attached, is an answer to the statnte in an action of assumpsit. Heyling v. Hastings. 1 L. Raym. 389. 1 Salk. 29.

20. If a man covenants to accept 1000l. Bank stock on three days' notice, upon, or before, a particular day, it is no excuse for him that the party to make the transfer had no stock before the day on which he was to make it. A man cannot be sued for money he covenanted to pay on the performance of a particular act, if he prevents such performance. The courts cannot take notice that Bank stock is only assignable at the Bank, and will attend to the simple allegation of the fact. Shales v. Seignoret. 1 L. Raym. 440. 21. If A. be illegally arrested by B. for a debt, a promise by C. to pay the debt claimed by B. in consideration of B.'s releasing A. out of cus tody, is void. Atkinson v. Settree. Willes, 482.

So is a promise to pay in consideration of forbearing to sue on a void security. Ibid. 484.

Or a promise to revive a security void in its creation. Ibid.

But if it be stated in a declaration a

gainst C. (on a promise by him to pay B. a debt claimed from A. in consideration of B.'s releasing A. from arrest) that B. procured A. to be arrested by virtue of a certain writ, &c. duly issued out of an inferior court, it will be intended after verdict that the arrest was legal. Ibid. 482.

22. Where two enter into articles of

partnership for seven years, in which is a covenant to account yearly, and to adjust, and make a final settlement at the expiration of the partnership, and they dissolve the partnership before the seven. years are expired, and account together, and strike a balance which is in favour of the plaintiff, including several items not connected with the partnership, and the defendant promises to pay it, an action

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of assumpsit lies on such express promise. Foster v. Allanson. Term Rep. 479. 23. An action of assumpsit may be maintained upon an express promise for the amount of a balance struck on a partnership account, though there was a covenant between the parties to account. Moravia v. Levy. Sittings at Guildhall, 1786, cor. Buller, J. 2 Term Rep. 483, n.

24. If a bankrupt, after obtaining his certificate, promise to pay a prior debt when he is able, in a general indebitatus assumpsit brought on that promise, the court of C. P. (dissent. Loughborough, C. J.) held, that the plaintiff must prove the ability of the defendant to pay. Besford v. Saunders. 2 H. Black. 116. 25. A. agrees to sell goods to B. who pays earnest; the goods are packed in cloths furnished by B. and deposited in a building belonging to A. until B. shall send for them; but A. declares at the same time, that they shall not be carried away until he is paid. A. cannot maintain an action for goods sold and delivered; this not being a delivery to B. Goodall v. Skelton. 2 H. Black. 316.

26. An agreement to pay a per centage upon the day on which any money should be received by the defendant through the means of the plaintiff's information does not entitle the plaintiff to the stipulated reward upon the transfer of Stock, in consequence of such information; although he might afterwards rereive the dividends thereon. Jones v. Brinley. 1 East, 1.

N. In the above case the court animadverted upon the immorality of such bargains and imperfect evidence having been given at the trial of the receipt of dividends due at the time of the transfer, they refused, upon the subsequent motion, to suffer that evidence to be supplied by affidavit. 1 East. 3.

27. A. declared against B. and his

wife, administratrix of C. deceased, "for that whereas C. died intestate, possessed of South Sea stock which she held in trust for A., and upon which certain dividends were due, in consideration that A. at his own expence would procure administration to be granted to the wife of B. as next of kin to C. and would furnish evidence to enable B. and his wife to receive the dividends; B. and his wife, as such administratrix, promised to pay over to A. the amount of the dividends when received:" held, that the consideration stated was insufficient to support the promise: and, that as the dividends never made part of the intestate's estate, the action against B. and his wife, as administratrix, could not be maintained. Parker v. Baylis et Ux. 2 Bos. & Pull. 73.

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A. agreed in writing to pay the rent of certain tolls which he had hired, "to the treasurer of the commissioners :" held, that no action for the rent could be maintained in the name of the treasurer. Pigot v Thomson. 3 Bos. & Pull. 147. 29. The master and the freighter of.

a vessel of 400 tons, having mutually agreed, in writing, that the ship being fitted for the voyage, should proceed to St. Petersburgh, and there load from the freighter's factor a complete cargo of hemp and iron, and proceed therewith to London, and deliver the same, on being paid freight, &c.: held, that the master, after taking in at St. Petersburgh, about half a cargo, having sailed away upon a general rumour of a hostile embargo being laid on British ships by the Russian government, was liable in damages to the freighter for the short delivery of the cargo; though the jury found that he acted bona fide, and under a reasonable and well grounded apprehension at the time; and the hostile embargo and seizure was in fact laid on six weeks afterwards. Atkinson v. Ritchie. East, 530.

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30. Proof that the defendant agreed to sell his horse warranted sound to the plaintiff for 31l. 10s., and at the same time agreed that if the plaintiff would take his horse at that value, he, the defendant, would buy another horse of the plaintiff's brother for 14l. 14s. and that the difference only should be paid to the defendant, will support a count charging only that in consideration that the plaintiff would buy of the defendant a horse for 31l. 10s. the defendant promised that it was sound, and that in fact the plaintiff did buy the horse for that price, and did pay to the defendant the said 311. 10s. Hands v. Burton. 9 East,

349.

31. A joint and several promise is not

within the stat, of 1784, c. 28, s. 12, but the creditor may bring a several action against each of the promisors at the same term; and have judgment for his costs as well as his damages against them all. Simonds v. Center. 6 Mass. 18. 32. Where one by public advertise ment offered a reward for a parcel of bank bills which he had lost, it was held, that the finder of a part was entitled to pro rata proportion of the reward offered. Symmes v. Frazier. 6 Mass. 344. 33. A contract made in a foreign place, valid there, and to be there executed, may be enforced in this State, although not valid by our laws, and although prohibited to our citizens: except the commonwealth or its citizens may be injured by giving the contract a legal effect here or the enforcing it in our courts would exhibit to the citizens of the State an example pernicious, and detestable. Greenwood

v. Curtis. 6 Mass. 358. 31. Where one had purchased a cargo on the coast of Africa, to be paid for in slaves, and having delivered a part of the slaves, settled the account, acknowledging a balance. due in cash, and the same day gave

ble in slaves, it was held that the creditor might recover on the insimul computassent. Ib.

35. Where one subscribed for certain shares in a turnpike, and promised to pay to A. B. agent of the proprietors, all the assessments &c. it was held, that the agent could maintain no action for the assessments unpaid; but that the promise would support an action by the proprietors in their corporate capacity. Gilmore v. Pope. 5 Mass. 491. 36. A supercargo, who is also a part owner, is authorised by his owners to take a credit, in a foreign port, of goods to a certain amount, for which he is directed to draw bills of exchange on them. He takes up monies within the amount, for which he gives a bond, undertaking to bind himself and his owners. It was held, that an action of assumpsit did not lie, for the obligee in the bond against the owners, for the monies so advanced. Banorgee v. Hovey et al. 5 Mass. 11.

37. Upon an express promise to pay the factor of any one, for the use of the principal, the factor may maintain an action in his own name. Fan Staphorst et al. v. Pearce.

Mass. 258.

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38. A supercargo engages to transport goods at his own risk against all dangers, excepting those of the seas, and dispose of them to the best profit of the consignor, and render his reasonable account: the goods arrived in safety at the place of destination, and are there stolen out of a store where they were deposited for sale: He was held to account to the consignor for the value at the place of shipment, deducting the agreed commission. Bridge v. Austin. 4 Mass. 115. 39. Assumpsit lies for the interest due on a promissory note, by which the interest is payable annually, although the principal is not yet payable. Cooley v. Rose. 3 Mass.

221.

in eight years, with interest payable annually, an action lies for the interest before the principal is due. In such ease interest is allowed upon each year's interest unpaid. 2 Mass. 568.

44. A. and B. jointly ship goods, and consign them to the master for sales and returns, A. only being known to the master. After the ship's departure, A. and B. agree to sever their interest in the adventure, and A. gives B. a written direction to the master to account with B. for a moiety; B. shews the direction to the master upon his return, and demands payment of him. The master, not having brought the proeeeds in the ship, refuses to account with B. but at the same time tells

with the right owner, and when the proceeds should arrive, he would pay them to B. if they belonged to him. This was a sufficient promise to support an action of assumpsit by B. against the master for the moiety. In such an action A. is a competent witness for the plaintiff. 2 Mass. 401.'

45. In assumpsit, if the declaration allege a promise to pay interest, an express promise must be proved. 1 Mass. 31.

46. A. draws his order on B., an insurance broker, directing him to pay to C. and D. in proportion to their respective demands against A. the balanee that may ultimately be due to A. on his insurance account, when B. should be in cash for the same; also any other monies, which B. might afterwards receive on A.'s account, to the amount of C. and D.'s just demands against him.

B. ac

eepts the order. Such acceptance will support an action by C. against B. for C's proportion of the monies received by B. 2 Mass. 293. 47. Where A. directed B. his servant, to enter a certain meadow which he said belonged to him, but which was, in fact, the meadow of C. and promised to save B. harmless, &c.; 17

ment, in an action of assumpsit, the promise laid in the declaration is presumed to be an express promise. Beecker v. Beecker. 7 Johns. R. 99. 50. Where a landlord distrained the goods of his tenant, for rent in arrear, and A. signed an agreement on the back of his inventory, by which he promised to deliver all the goods contained in the inventory to the landlord in six days after demand, or pay him 450 dollars, being the amount of the rent due; it was held, that this was an original, not a collateral undertak-' ing, and that an action might be maintained against A. for a breach of the promise. Slingerland v. Morse and others. 7 Johns. Rep.

463.

51. Assumpsit lies against a deputy sheriff, upon an express promise to pay money, collected by him on execution, to the plaintiff. Tuttle v. Love. 7 Johns. Rep. 470. 52. But the plaintiff must prove a clear and absolute promise. It is not sufficient that the deputy sheriff said that he would pay the amount of the judgment, but not the costs for entering a rule for an attachment," when the plaintiff would not accept the one without the oth ér. Ib.