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06. The mere sale and delivery of a she declared, quod cum, she had a

promissory note, without any in- greed and promised to marry the dorsement or assignment, will not defendant, he in consideration therebe sufficient to maintain an action of, promised to marry her. Upon brought by the purchasor in his non assumpsit pleaded, the cause own name, where no other consider- was tried before Holt, C. J. and the ation for an assumpsit is laid in the promise of the marriage was provdeclaration. í Dallas, 370.

ed, but no actual promise on the wo97. An action cannot be maintained man's side; yet he held there was

for services, if the party acted mere- sufficient evidence to prove, that the ly in expeetation of a legaey. 4 woman likewise promised, because Dallas, 111, 130.

she carried herself as one consent98. A creditor cannot maintain an ac- ing and approving the promise of tion for a dividend against the vol

the mall.

Hutton y. Mansell. 3 untary trustees of his creditor, un- Salk. 16. less he has subscribed the conditions 4. Special action прon

the case upon of the trust. 4 Dallas, 224.

a promise to deliver up a bond, 99. Quere, whether the holder of a pledged upon a payment of money

promissory note in Virginia, cannot borrowed of the defendant. Breach maintian an action for money had and assigned, that the defendant refused received, against a remote indorser ? to deliver up the bond, and held

Dunlop v. Silver. 1 Cranch, 367. well enough, although it is not laid 100. Assumpsit will not lie upon a pol- that the money was paid or tender

icy of insurance under the corporate ed, it having been proved at the triseal, unless a new consideration be al that there was a tender and reaverred. Insurance Co. of Alexan- fusal. Alcorn y. Westbrook. 1 dria v. Young. 1 Cranch, 332. Wils. 115.

5. Promise for promise is a good III. Assumpsit on express promises, consideration in an action on an fc.

assumpsit, without an averment

of the performance of plaintiff's 1. A promise to marry good on as- promise. Martindale v. Fisher. sumpsit, and the statute of frauds

Wils. 88. and perjuries extends only to con- 6. Forbearance to arrest a debtor tracts in consideration of marriage, until after a particular day, is a and not contracts to marryCork good consideration for a promise by v. Baker. 1 Str. 34.


the debt on or 2. An action lies against a woman before the day. IVaters v. Glassop.

for a breach of promise of marriage. 1 L. Raym. 357. A promise to marry which does not 7. Assumpsit, defendant pleads in a

ascertain the time, is a promise to batement, that he was bailiff, and marry in a reasonable time upon re- that plaintiff ought to bring account. quest.

Where express promise is, assumpsit On a promise to marry upon request, lies as well as account. Wilkin v.

the request need not be made with Willcin. 1 Salk. 9. a parson.

8. Promise by the defendant to pay a In an action on a promise to marry judgment debt obtained against him,

upon request, a declaration which in consideration that the plaintiff shews that the defendant has mar- would stay execution thereon, is no ried another person who is living, ground to raise an assumpsit. Othneed, not state a request. Harrison erwise, if the promise be by a third v. Cage and his wife. 1 L. Raym. person, Anonymous. Corp. 129. 396. 1 Salk. 24.

9. If the declaration contain a count 3. Case, &c. by a feme sole, in which on a special agreement, and also

a third

person to

for money

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general counts, though the plaintiff 19. Conditional promise prevents the fail in proving the special agree- operation of the statute of limitament, he may go into evidence on tions, as much as express. Heyling the general counts. Payne v. Ba- v. Hastings. 1 L. Raym. 389. 1 comb. 2 Douglas, 651.

Salk. 29. 40. Indebitatus assumpsit for money re- 20. If a man covenants to accept 10001,

ceived ad computandum, aided by Bank stock on three days' notice, verdict. Poulter v. Cornwall. 1 upon, or before, a particular day, Salk. 9.

it is no excuse for him that the

par11. A promise to pay as much as the ty to make the transfer had no stock

party habere meruit, upon an execu- before the day on which he was to tory consideration shall be constru- make it. A man cannot be sued ed as a promise to pay as much as

he covenanted to pay on he habere meruit: and so shall ac- the performance of a partieular act, count upon it, at least, after verdiet. if he prevents such performance. Moverly v. Lee. 2 L. Raym. 1223. The courts cannot take notice that 2 Salk, 533.

Bank stock is only assignable at the 12. Upon a contract to do an act upon Bauk, and will attend to the simple

the first of two events, a perform- allegation of the fact. Shales v. ance may be enforced, though it is Seignoret. 1 L. Raym. 410. not called for until both have hap- 21. If A. be illegally arrested by B. pened. Loggin v. Comitem Orrery. for a debt, a promise by C. to pay 1 L. Raym. 133.

the debt claimed by B. in consider13. An action upon an insimul compu- ation of B.'s releasing A. out of cuss

tasset must shew the time when, and tody, is void. Atkinson v. Settree. the place where, the account was Willes, 492. stated. Desborough v. Kelby. 1 L. So is a promise to pay in consideraRaym. 533.

tion of forbearing to sue on a void 14. In assumpsit on a policy of insur- security. Ibid. 484.

ance, as for a total loss, an average Or a promise to revive a security void loss may be recovered. Whitehead in its creation. Ibid. v. Hunt. 2 Douglas, 732.

But if it be stated in a declaration a15. Where an action is brought for gainst C. (on a promise by him to

more than the defendant promised pay B. a debt claimed from A. in to pay, it is not good. Butcher v. consideration of B.'s releasing 1.

Andrews. 3 Salk. 15. 1 Salk. 23. from arrest) that B. procured 7. to 16. An indebitatus assumpsit lies for be arrested by virtue of a certain

nursing a stranger at the defend- writ, &c. duly issued out of an inant's request.

ferior court, it will be intended afA man cannot in the same declaration ter verdict that the arrest was legal.

demand several satisfactions for the Ibid. 482. same thing. Hart v. Langjit. 2 22. Where two enter into articles of L. Raym. 8+1.

partnership for seven years, in 17. Upon mutual independent con- which is a covenant to account

tracts in the same instrument, either yearly, and to adjust, and make a party may maintain an action be- final settlement at the expiration of fore performance of his part. the partnership, and they dissolve Trench, erecutor of Squire v. Trew- the partnership before ihe seven in. 1 L. Raym. 124.

years are expired, and account to15. A promise to pay a debt upon gether, and strike a balance which

which the statute of limitations has is in favour of the plaintift, includattached, is an answer to the stat- ing several items not connected ute in an action of assumpsit. Hey- with the partnership, and the deling v. Hastings. 1 L. Raym. 389. fendant promises to pay it, an action 1 Salk. 29.

of assumpsit lies on such express wife, administratrix of C. deceased, promise. Foster v. Allanson. 2 6 for that whereas C. died intestate, Term Rep. 479.

possessed of South Sea stock which 23. An action of assumpsit may be she held in trust for A., and upon maintained upon an express prom

which certain dividends were due, ise for the amount of a balance in consideration that A. at his own struck on a partnership account, expence would procure administrathough there was a covenant be- tiou to be granted to the wife of B. tween the parties to account. Mo- as next of kin to C. and would furravia v. Levy. Sittings at Guild- nish evidence to enable B. and his hall, 1786, cor. Buller, J. 2 Term

wife to receive the dividends; B. Rep. 483, n.

and his wife, as such administra24. If a bankrupt, after obtaining his trix, promised to pay over to 1. the certificate, promise to pay a prior

amount of the dividends when redebt when he is able, in a general in- ceived :" held, that the consideradebitotus assumpsit brought on that tion stated was insufficient to suppromise, the court of C. P. (dissent. port the promise : and, that as the Loughborough, C. J.) held, that the dividends never made part of the inplaintiff must prove the ability of testate's estate, the action against the defendant to pay. Besford v. B. and his wife, as administratrix, Saunders. 2 H. Black. 116.

could not be maintained. Parker 25. A. agrees to sell goods to B. who v. Baylis et Ux. 2 Bos. $ Pull. 73.

pays earnest; the goods are pack- 28. A. agreed in writing to pay the ed in cloths furnished by B. and de- rent of certain tolls which he had posited in a building belonging to hired,“ to the treasurer of the com9. until B. shall send for them; but missioners :" held, that no action for A. declares at the same time, that the rent could be maintained in the they shall not be carried away un- naine of the treasurer. Pigot v til he is paid. A. cannot maintain Thomson. 3 Bos. f Pull. 147. an action for goods sold and deliv- 29. The master and the freighter of. ered; this not being a delivery to a vessel of 400 tons, having mutual. B. Goodall v. Skelton. 2 H. Black. ly agreed, in writing, that the ship 316.

being fitted for the


should 26. An agreement to pay a per cent- proceed to St. Petersburgh, and age upon the day on which any mon- there load from the freighter's facey should be received by the de- tor a complete cargo of hemp and fendant through the means of the iron, and proceed therewith to Lonplaintiff's information does not en- don, and deliver the same, on being tide the plaintiff to the stipulated paid freight, &c. : held, that the reward upon the transfer of Stock, master, after taking in at St. Pein consequence of such information tersburgh, about half a cargo, haralthough he might afterwards re- ing sailed away upon a general ruceive the dividends thereon. Jones mour of a hostile embargo being v. Brinley. 1 East, 1.

laid on British ships by the Russian N. In the above case the court ani- government, was liable in damages

madverted upon the immorality of to the freighter for the short delivsuch bargains : and imperfect evi- ery of the cargo; though the jury dence having been given at the tri- found that he acted bona fide, and al of the receipt of dividends due at under a reasonable and well groundthe time of the transfer, they refus- ed apprehension at the time; and ed, upon the subsequent motion, to the hostile embargo and seizure suffer that evidence to be supplied was in fact laid on six weeks afterby affidavit. 1 East. 3.

10 27. A. declared against B. and his East, 530.

wards. Atkinson v. Ritchie.

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30. Proof that the defendant agreed ble in slaves, it was held that the

to sell his horse warranted sound to creditor might recover on the insi-
the plaintiff for 311. 108., and at the mul computassent. Ib.
same time agreed that is the plain- 35. Where one subscribed for certain
tiff would take his horse at that shares in a turnpike, and promised
value, he, the defendant, would buy to pay to A. B. agent of the proprie-
another horse of the plaintiff's tors, all the assessmeats &c. it was
brother for 141. 14s. and that the held, that the agent could maintain
difference only should be paid to the no action for the assessments un-
defendant, will support a count paid ; but that the pro.nise would
charging only that in consideration support an action by the proprie-
that the plaintiff would buy of the tors in their corporate capacity.
defendant a horse for 311. 10s. the Gilmore v. Pope. ő Mass. 191.
defendant promised that it was 36. A supercargo, who is also a part
sound, and that in fact the plaintiff owner, is authorised by his owners
did buy the horse for that price, and to take a credit, in a foreign port,
did pay to the defendant the said 31l. of goods to a certain amount, for
108. Hands v. Burton. 9 East, which he is directed to draw bills

of exchange on them. He takes up 31. A joint and several promise is not monies within the amount, for

within the stat, of 1784, c. 28, s. 12, which he gives a bond, undertaking but the creditor may bring a sever

to bind himself and his owners. It al action against each of the proin- was held, that an action of assumpisors at the same term ; and have sit did not lie, for the obligee in the judgment for his costs as well as bond against the owners, for the his damages against them all. Si- monies so advanced. Banorgee v. monds v. Center. 6 Nass. 18.

Hovey et al.

5 Mass. 11. 32. Where one by public advertise- 37. Upon an express promise to pay

ment offered a reward for a parcel of the factor of any one, for the use of bank bills which he had lost, it was the principal, the factor may mainheld, that the finder of a part was tain an action in his own name. entitled to pro rata proportion of Van Staphorst et al. v. Pearce. the reward offered. Symmes v. Mass. 258. Frazier. 6 Mass. 347.

38. A supercargo engages to trans33. A contract made in a foreign port goods at his own risk against

place, valid there, and to be there all dangers, excepting those of the executed, may be enforced in this seas, and dispose of them to the State, although not valid by our best profit of the consignor, and renlaws, and although prohibited to der his reasonable account: the our citizens : except the common- goods arrived iu safety at the place wealth or its citizens may be injur- of destination, and are there stolen ed by giving the contract a legal ef- out of a store where they were fect here: or the enforcing it in deposited for sale : He was held our courts would exhibit to the citi- to account to the consignor for the zens of the State an example perni- value at the place of shipinent, cious, and detestable. Greenwood

deducting the agreed cominission. v. Curtis. 6 Mass. 338.

Bridge v. Ausrin. 4.25. 115. 31. Where one had purchased a car- 39. Assumpsit lies for the interest due

go on the coast of Africa, to be paid on a promissory note, by which the for in slaves, and having delivered interest is payable anually, al

a part of the slaves, settled the ac- though the principal is not yet pay· count, acknowledging a balance able. Cooley v. Rose. 3 Mass.

die in cash, and the same day give 221. a note for the same balance paya- 40. Upon a promissory note payable

in eight years, with interest payable the promise was held to be an orig. annually, an action lies for the in. al undertaking, and not necessary terest before the principal is due. to be in writing, and that the act of In such ease interest is allowed up- B. in obeying such a command was on each year's interest unpaid. 2 lawful, and a sufficient consideraMass. 568.

tion to support the promise of in41. J. and B. jointly ship goods, and demnity. Allaire v. Ouland. 2

consign them to the master for sales Johns. Cas. 52. and returns, A. only being known to 48. Assunipsit is the proper form of the master. After the ship's de- action, where there is a warranty, parture, A. and B. agree to sever express or implied, in the sale of Their interest in the adventure, and chattels; but where the plaintiff A. gives B. a written direction to grounds his action on deceit or fraud the master to account with B. for a in the sale, and not on a breach of moiety; B. shews the direction to the contract, the deceit or fraud the master upon his return, and de- must be substantively alleged in the mands payment of him. The mas- declaration, otherwise no proof of ter, not having brought the pro- fraud is adınissible. Evertson's Exceeds in the ship, refuses to account ecutor v. Miles. 6 Johns. Rep. with B. but at the same tine tells 138. him that he is ready to account 49. On a motion in arrest of judgwith the right owner, and when the ment, in an action of assumpsit, the proceeds should arrive, he would promise laid in the declaration is pay them to B. if they belonged to presumed to be an express promise. hiin. This was a sufficient promise Beecker v. Beecker. 7 Johns. R. 99. to support an actiou of assumpsit by 50. Where a landlord distrained the B. against the master for the moie- goods of his tenant, for rent in arty. In sueh an action A. is a com- rear, and A. signed an agreement petent witness for the plaintiff. 2 on the back of his inventory, by Mass. 401.

which he “ promised to deliver 15. In assumpsit, if the declaration all the goods contained in the in

allege a promise to pay interest, ani ventory to the landlord in six days express promise must be proved. after demand, or pay him 450 dol1 Mass. 31.

lars, being the amount of the rent 46. A. draws his order on B.; an insur- due; it was held, that this was an ance broker, directing him to pay to original, not a collateral undertakC. and D. in proportion to their res- ing, and that an action might be pective demands against A. the bal- maintained against A. for a breach apee that may ultimately be due to of the promise. Slingerland v. A. on his insurance account, when Morse and others. 7 Johns. Rep. B. should be in cash for the same ; 463. also any other monies, which B. 51. Assumpsit lies against a deputy might afterwards receive on A.'s ac- sheriff, upon an express promise to count, to the amount of C. and D.'s

pay money, collected by him on exjust demands against him.

ecution, to the plaintiff. Tuttle v. cepts the order. Such acceptance Love. Johns. Rep. 470. will support an action by C. against 52. But the plaintiff must prove a B. for C's proportion of the monies clear and absolute promise. It is

received by B. 2 Mass. 293. not sufficient that the deputy sher47. Where A. directed B. his servant, iff said “ that he would pay the a

to enter a certain meadow which he mount of the judgment, but not the said belonged to him, but which costs for entering a rule for an atwas, in fact, the meadow of C. and tachment," when the plaintiff would promised to save B. harmless, &c.; not accept the one without the oth

er. 16.

B. ac

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