IN THE COMMON PLEAS, MICHAELMAS TERM, 1504.

[Reported in Keilwey, 77 placitum, 25.]

IN action of trespass on the case the plaintiff counted that he had bought of the defendant twenty quarters of malt for a certain sum of money paid beforehand, and he left it with the defendant to safely keep to the use of the plaintiff until a certain day now passed, and to do this the defendant super se assumpsit. Before the day the defendant from the good custody of the defendant himself had con

vided the offer is standing, and the acceptance is made within a reasonable time. . . . It will be seen that the rule is sharply defined. The instruction given seems to us to be a departure from it. It assumes that the contract in the case at bar was not necessarily complete when the letter of acceptance was mailed, and that no contract would have been made, if the plaintiff immediately upon the receipt of the letter had notified the defendant that the offer was withdrawn. The departure from the recognized rule must have been deemed called for upon the ground that the letter of acceptance was not mailed within a reasonable time. The court, doubtless, assumed the rule to be, that a contract by the correspondence is not completed by the mailing of the letter of acceptance, where that is not done, within a reasonable time. . . . Taking this to be the rule, we have to inquire whether an acceptance after the time limited, or, in the absence of an express limitation, after the lapse of a reasonable time, imposes upon the person making the offer any obligation. The theory of the court below seems to have been that it does. But in our opinion it does not. The offer, unless sooner withdrawn, stands during the time limited, or, if there is no express limitation, during a reasonable time. Until the end of that time the offer is regarded as being constantly repeated. Chitty on Cont. (11th ed.), 17. After that there is no offer, and, properly considered, nothing to withdraw. The time having expired, there is nothing which the acceptor can do to revive the offer, or produce an extension of time." Ferrier v. Storer, 63 Ia. 484, 487. See also Maclay v. Harvey, 90 Ill. 525.

[The offerer when he has received an acceptance which is too late] "would act prudently and fairly if he informed his correspondent that he had given up the transaction and was no longer disposed to bind himself by the agreement in regard to which he had at first taken the initiative. Otherwise, indeed, his silence might be consid ered as importing tacit assent to the proposition ex novo contained in the late acceptance. . . . These considerations have such force that they have led to some legislation imposing on every one who has made an offer by correspondence the duty to inform his correspondent that the acceptance has arrived too late. German Commercial Code, Art. 319; Swiss Federal Code of Obligations, Art. 5;" Valéry, Contrats par Correspondance, § 203.

verted the said malt to his own use, to the injury and damage of the plaintiff, &c. More. The plaintiff has counted that he bought twenty quarters of malt and has not shown that it was in sacks, so by the purchase no property was passed, for the plaintiff cannot take this malt from the storehouse of the defendant because of,such a purchase of uncertain malt, nor can he have action of detinue, nor, for the same reason, action on the case, but as the case is here he is put to his action of debt for the malt. And the matter was discussed at the bar, and then by all the bench. On which FROWIKE said: Truly the case is good, and many good cases touching the matter have been put; nevertheless the words at the purchase are the whole matter. As, if a man sells me one of his horses in his stable, and grants further that he will deliver the horse to me by a certain day, I shall not take the horse without his delivery. But if he sells to me one of his horses within his stable for a certain sum of money paid beforehand, I can take the horse that is such horse as pleases me without any delivery. And in both cases if he aliens or converts all his horses to his own use so that I cannot have my bargain carried out, I shall have action on my case against him because of the payment of the money. And so if I sell ten acres of land, parcel of my manor, and then I make feoffment of the manor, you will have good action against me on your case because of the receipt of your money, and in this case you have no other remedy against me. And so if I sell you certain land, and I covenant further to enfeoff you by a certain day and do not, you will have good action on the case, and that is adjudged. And so if I sell you twenty oaks from my wood for money paid, and then I alien the wood, action on the case lies. And so if I deliver money to a man to deliver over and he does not, but converts the money to his own use, I can elect to have action of account against him or action on my case; but the stranger has no other remedy except action of account. And so if I bail my goods to a man to safely keep, and he takes the custody upon him, and my goods for lack of good custody are lost or destroyed, I shall have action of detinue, or on my case at my pleasure, and shall charge him by this word super se assumpsit. And if I make use of my action of detinue and he wages his law, I shall be barred in action on my case, because since I had liberty to elect action of detinue it was at my peril, and I have lost the advantage of the action on my case, and this is adjudged. As, if I hold an acre of land by fealty, twenty shillings of rent, or by a hawk or a rose, in the disjunctive, in this case before the rent day I have liberty to pay the hawk, rose, or otherwise the twenty shillings, at my pleasure. And if I covenant with a carpenter to build a house and pay him twenty pounds for the house to be built by a certain day, now I shall have good action on my case because of payment of my money, and still it sounds only in covenant, and without payment of money in this case no remedy; and still if he builds it and misbuilds it, action on my case lies. And also for nonfeasance, if the money is paid

action on the case lies. And hence it seems to me in the case at bar the payment of the money is the cause of the action on the case without any passing of any property, &c., et adjournatur, &c.1

HUNT v. BATE.

EASTER TERM, 1568.

[Reported in Dyer, 272.|

THE servant of a man was arrested, and imprisoned in the Compter in London for trespass; and he was let to mainprize by the manucaption of two citizens of London (who were well acquainted with the master), in consideration that the business of the master should not go undone. And afterwards, before judgment and condemnation, the master upon the said friendly consideration promised and undertook to one of the mainpernors to save him harmless against the party plaintiff from all damages and costs, if any should be adjudged, as happened afterwards in reality; whereupon the surety was compelled to pay the condemnation, sc. 31., &c. And thereupon he brought an action on the case, and the undertaking was traversed by the master, and found in London at nisi prius against him. And now in arrest of judgment it was moved that the action does not lie. And by the opinion of the Court it does not lie in this matter, because there is no consideration wherefore the defendant should be charged for the debt of his servant, unless the master had first promised to discharge the plaintiff before the enlargement and mainprize made of his servant, for the master did never make request to the plaintiff for his servant to do so much, but he did it of his own head. Wherefore, &c.

But in another like action on the case, brought upon a promise of 201. made to the plaintiff by the defendant, in consideration that the plaintiff, at the special instance of the said defendant, had taken to wife the cousin of the defendant, that was good cause, although the marriage was executed and past before the undertaking and promise, because the marriage ensued the request of the defendant." And land may be also given in frank-marriage with the cousin of the donor as well after the marriage as before, because the marriage may be intended the cause, &c. And therefore the opinion of the Court in this case this Term was, that the plaintiff should recover upon the verdict, &c. And so note the diversity between the aforesaid cases.

1 The stages in the early development of assumpsit are shown in Professor Ames's articles on The History of Assumpsit, 2 Harv. L. Rev. 1, 53.

2 Riggs v. Bullingham, Cro. Eliz. 715; Bosden v. Thinne, Yelv. 40; Field v. Dale, 1 Rolle's Ab. 11, plac. 8; Townsend v. Hunt, Cro. Car. 418; Oliverson v. Wood, 3 Lev. 419, acc.

SMITH AND SMITH'S CASE.

IN THE QUEEN'S BENCH, MICHAELMAS TERM, 1588.

[Reported in 8 Leonard, 88.]

LAMBERT SMITH, executor of Tho. Smith, brought an action upon the case against John Smith, that whereas the testator, having divers children infants, and lying sick of a mortal sickness, being careful to provide for his said children infants, the defendant, in consideration the testator would commit the education of his children, and the disposition of his goods after his death, during the minority of his said children, for the education of the said children, to him, promised to the testator to procure the assurance of certain customary lands to one of the children of the said testator; and declared further, that the testator thereupon constituted the defendant overseer of his will, and ordained and appointed by his will that his goods should be in the disposition of the defendant, and that the testator died, and that by reason of that will, the goods of the testator to such a value came to the defendant's hands to his great profit and advantage. And upon non assumpsit pleaded, it was found for the plaintiff. And upon exception to the declaration in arrest of judgment for want of sufficient consideration, it was said by WRAY, C. J., that here is not any benefit to the defendant that should be a consideration in law to induce him to make this promise; for the consideration is no other but to have the disposition of the goods of the testator pro educatione liberorum. For all the disposition is for the profit of the children; and notwithstanding that such overseers commonly make gain of such disposition, yet the same is against the intendment of the law, which presumes every man to be true and faithful if the contrary be not showed; and therefore the law shall intend that the defendant hath not made any private gain to himself, but that he hath disposed of the goods of the testator to the use and benefit of his children according to the trust reposed in him. Which AYLIFFE, J., granted; GAWDY, J., was of the contrary opinion. And afterwards by award of the Court it was that the plaintiff nihil capiat per billam.

SIDENHAM AND WORLINGTON.

IN THE COMMON PLEAS, EASTER TERM, 1585.

[Reported in 2 Leonard, 224.]

In an action upon the case upon a promise, the plaintiff declared that he, at the request of the defendant, was surety and bail for J. S., who was arrested in the King's Bench upon an action of 301., and that after

wards, for the default of J. S., he was constrained to pay the 301.; after which the defendant, meeting with the plaintiff, promised him for the same consideration that he would repay that 307., which he did not pay; upon which the plaintiff brought the action. The defendant pleaded non assumpsit, upon which issue was joined, which was found for the plaintiff. Walmesley, Serjt., for the defendant, moved the Court that this consideration will not maintain the action, because the consideration and promise did not concur and go together; for the consideration was long before executed, so as now it cannot be intended that the promise was for the same consideration: as if one giveth me a horse, and a month after I promise him 107. for the said horse, he sball never have debt for the 107., nor assumpsit upon that promise; for there it is neither contract nor consideration, because the same is executed. ANDERSON. This action will not lie; for it is but a bare agreement and nudum pactum, because the contract was determined, and not in esse at the time of the promise; but he said it is otherwise apon a consideration of marriage of one of his cousins, for marriage is always a present consideration. WINDHAM agreed with ANDERSON, and he put the case in 3 H. 7. If one selleth a horse unto another, and at another day he will warrant him to be sound of limb and member, it is a void warrant, for that such warranty ought to have been made or given at such time as the horse was sold. PERIAM, J., conceived that the action did well lie; and he said that this case is not like unto the cases which have been put of the other side: for there is a great difference betwixt contracts and this case; for in contracts upon sale, the consideration and the promise and the sale ought to meet together; for a contract is derived from con and trahere, which is a drawing together, so as in contracts every thing which is requisite ought to concur and meet together, viz., the consideration of the one side, and the sale or the promise on the other side. But to maintain an action upon an assumpsit, the same is not requisite, for it is sufficient if there be a moving cause or consideration precedent; for which cause or consideration the promise was made; and such is the common practice at this day. For in an action upon the case upon a promise, the declaration is laid that the defendant, for and in consideration of 201. to him paid (postea scil.), that is to say, at a day after super se assumpsit, and that is good; and yet there the consideration is laid to be executed. And he said that the case in Dyer, 10 Eliz. 272, would prove the case. For there the case was, that the apprentice of one Hunt was arrested when his master Hunt was in the country, and one Baker, one of the neighbors of Hunt, to keep the said apprentice out of prison, became his bail, and paid the debt. Afterwards Hunt, the master, returning out of the country, thanked Baker for his neighborly kindness to his apprentice, and promised him that he would repay him the sum which he had paid for his servant and apprentice: and after wards, upon that promise, Baker brought an action upon the case against Hunt, and it was adjudged in that case that the action would not lie, because the consideration was precedent to the promise, because