페이지 이미지
PDF
ePub

defendant, and after many conferences between the Justices and Barons, it was resolved, that the action was maintainable, and that the plaintiff should have judgment. And in this case these points were resolved:-- 1. That although an action of debt lies upon the contract, yet the bargainor may have an action on the case, or an action of debt at bis election, and that for three reasons or causes: 1. In respect of infinite precedents (which George Kemp, Esq. Secondary of the Prothonotaries of the King's Bench showed me), as well in the Court of Common Pleas as in the Court of King's Bench, in the reigns of King H. 6. E. 4. H. 7. and H. 8. by wbich it appears, that the plaintiffs declared that the defendants, in consideration of a sale to them of certain goods, promised to pay so much money, &c. in which cases the plaintiffs had judgment. ... The second cause of their resolution was divers judgments and cases resolved in our books where such action on the case on Ass. has been maintainable, when the party might have had an action of debt, 21 H. 6. 55 b. 12 E. 4. 13. 13 H. 7. 26. 20 H. 7. 4 b. and 20 H. 7. 8 b. which case was adjudged as Fitz James cites it, 22 H. 8. Dyer 22 b. 27 H. 8. 24 & 25. in Tatam’s case, Norwood and Read's case adjudged Plowd. Com. 180. 3. It was resolved, that every contract executory imports in itself an assumpsit, for when one agrees to pay money, or to deliver anything, thereby he assumes or promises to pay, or deliver it, and therefore when one sells any goods to another, and agrees to deliver them at a day to come, and the other in consideration thereof agrees to pay so much money as such a day, in that case both parties may have an action of debt, or an action on the case on assumpsit, for the mutual executory agreement of both parties imports in itself reciprocal actions upon the case, as well as actions of debt, and therewith agrees the judgment in Read and Norwood's case, Pl. Com. 128. 4. It was resolved, that the plaintiff in this action on the case on assumpsit should not recover only damages for the special loss (if any be) which he had, but also for the whole debt, so that a recovery or bar in this action would be a good bar in an action of debt brought upon the same contract; so vice versa, a recovery or bar in an action of debt, is a good bar in an action on the case on assumpsit. Vide 12 E. 4. 13 a. 2 R. 3. 14. (32) 33 H. 8. Action sur le case. Br. 105. 5. In some cases it would be mischievous if an action of debt should be only brought, and not an action on the case, as in the case inter Redman and Peck, 2 & 3 Ph. and Mar. Dyer 113. they bargained together, that for a certain consideration Redman should deliver to Peck twenty quarters of barley yearly during his life, and for nondelivery in one year, it is adjudged that an action well lies, for otherwise it would be mischievous to Peck, for if he should be driven to his action of debt, then he himself could never have it, but his executors or administrators, ior debt doth not lie in such case, till all the days are incurred, and that would be contrary to the bargain and intent of the parties, for Peck provides it yearly for his neces

sary use: 80 5 Mar. Br. Action sur le case 108. that if a sum is given in marriage to be paid at several days, an action upon the case lies for non-payment at the first day, but no action of debt lies in such case till all the days are past. Also it is good in these days in ́as many cases as may be done by the law, to oust the defendant of his law, and to try it by the country, for otherwise it would be occasion of much perjury. 6. It was said, that an action on the case on assumpsit is as well a formed action, and contained in the register, as an action of debt, for there is its form: also it appears in divers other cases in the register, that an action on the case will lie, although the plaintiff may have another formed action in the Register. And therefore it was concluded, that in all cases when the Register has two writs for one and the same case, it is in the party's election to take either. But the Register has two several actions, sc. action upon the case upon assumpsit, and also an action of debt, and therefore the party may elect either. And as to the objection which has been made, that it would be mischievous to the defendant that he should not wage his law, forasmuch as he might pay it in secret: to that it was answered, that it should be accounted his folly that he did not take sufficient witnesses with him to prove the payment he made: but the mischief would be rather on the other party, for now experience proves that men's consciences grow so large that the respect of their private advantage rather induces men and chiefly those who have declining estates) to perjury: for Jurare in propria causa (as one saith) est sæpenumero hoc seculo præcipitium diaboli ad detrudendas miserorum animas ad infernum : and therefore in debt, or other action where wager of law is admitted by the law, the Judges without good admonition and due examination of the party do not admit him to it. And as to the case which was cited, that debts or duties due by single contract where the party may wage his law, shall not be forfeited by outlawry, because the debtor will be thereby ousted of his law: to that it was answered by the Attorney-General that in such case by the law, debts or duties shall be forfeited to the King, and so are the better opinions of the books.

RANN AND ANOTHER, Excecutors of MARY HUGHES, v. ISABELLA

HUGHES, Administratrix of J. HUGHES.

IN THE HOUSE OF LORDS, May 14, 1778.

(Reported in 7 Term Reports, 350, note (a).

The declaration stated that on the 11th of June, 1764, divers disputes had arisen between the plaintiffs' testator and the defendant's intestate, which they referred to arbitration; that the arbitrator

VOL. I. - 11

а

awarded that the defendant's intestate should pay to the plaintiffs' testator 983l. ; that the defendant's intestate afterwards died possessed of effects suficient to pay that sum; that administration was granted to the defendant; that Mary Hughes died, having appointed the plaintiffs her executors ; that at the time of her death the said sum of £983 was unpaid : by reason of which premises the defendant, as administratris, became liable to pay to the plaintiffs, as executors, the said sum ; and being so liable, she, in consideration thereof, undertook and promised to pay, &c. The defendant pleaded non assumpsit, plene administravit, and plene administravit except as to certain goods, &c., which were not sufficient to pay an outstanding bond-debt of the intestate's therein set forth, &c. The replication took issue on these pleas. Verdict for the plaintiff on the first issue, and for the defendant on the two last; and on the first a general judgment was entered in B. R. against the defendant de bonis propriis. This judgment was reversed in the Exchequer Chamber; and a writ of error was afterwards brought in the House of Lords, where, after argument, the following question was proposed to the judges by the Lord Chancellor ; Whether sufficient matter appeared upon the declaration to warrant after verdict the judgment against the defendant in error in her personal capacity; upon which the Lord Chief Baron Skynner delivered the opinion of the judges to this effect: It is undoubtedly true that every man is, by the law of nature, bound to fulfil his engagements. It is equally true that the law of this country supplies no means, nor affords any remedy, to compel the performance of an agreement made without sufficient consideration. Such agreement is nudum pactum, ex quo non oritur actio; and whatsoever may be the sense of this maxim in the civil law, it is in the last-mentioned sense only that it is to be understood in our law. The declaration states that the defendan“, being indebted as administratrix, promised to pay when requested ; and the judgment is against the defendant generally. The being indebted is of itself a sufficient consideration to ground a promise ; but the promise must be coëxtensive with the consideration, unless some particular consideration of fact can be found here to warrant the extension of it against the defendant in her own capacity. If a person indebted in one right, in consideration of forbearance for a particular time, promise to pay in another right, this convenience will be a sufficient consideration to warrant an action against him or her in the latter right; but here no sufficient consideration occurs to support this demand against her in her personal capacity, for she derives no advantage or convenience from the promise here made. For if I promisc generally to pay upon request what I was liable to pay upon request in another right, I derive no advantage or convenience from this promise, and therefore there is not sufficient consideration for it. But it is said that if this promise is in writing, that takes away the necessity of a consideration, and obviates the objection of nudum pactum, for that cannot be where the promise is put in writing; and that, if it were necessary to support the promise that it should be in writing, it will, after verdict, be presumed that it was in writing; and this last is certainly true ; but that there cannot be nudum pactum in writing, whatever may be the rule of the civil law, there is certainly none such in the law of England. His Lordship observed, upon the doctrine of nudum pactum delivered by Mr. J. Wilmot in the case of Pillans v. Van Mierop and Hopkins, 3 Burr. 1663, that he contradicted himself, and was also contradicted by Vinnius in his comment on Justinian.

All contracts are by the laws of England distinguished into agreements by specialty, and agreements by parol ; nor is there any such third class, as some of the counsel have endeavored to maintain, as contracts in writing. If they be merely written and not specialties, they are parol, and a consideration must be proved. But it is said that the Statute of Frauds has taken away the necessity of any consideration in this case : the Statute of Frauds was made for the relief of personal representatives and others, and did not intend to charge them further than by common law they were chargeable. His Lordship here read those sections of that statute which relate to the present subject. He observed that the words were merely negative, and that executors and administrators should not be liable out of their own estates, uniess the agreement upon which the action was brought, or some memorandum thereof, was in writing and signed by the party. But this does not prove that the agreement was still not liable to be tried and judged of as all other agreements merely in writing are by the common law, and does not prove the converse of the proposition, that when in writing the party must be at all events liable. He here observed upon the case of Pillans v. Van Mierop, in Burr., and the case of Losh v. Williamson, Mich. 16 G. 3, in B. R. ; and so far as these cases went on the doctrine of nudum pactum, he seemed to intimate that they were

He said that all his brothers concurred with him that in this case there was not a sufficient consideration to support this demand 48 a personal demand against the defendant, and that its being now supposed to have been in writing makes no difference. The consequence of which is that the question put to us must be answered in the negative.

And the judgment in the Exchequer Chamber was affirmed."

[ocr errors]

erroneous.

1 In 7 Brown's Parliament Cases, 550 (vol. 4 of Tomlin's ed., p. 27), the arguments of counsel are given. Upon the question of consideration, F. Buller and J. Dunning, for the plaintiffs in error, argued as follows:

“In the case of a promise in writing, which this must be taken to be (and which they said it was in fact), it is not necessary to allege any consideration in the declaration; but if it were necessary, there was a sufficient consideration for the promise appearing upon this declaration. In reason, there is little or no difference between a contract which is deliberately reduced into writing, and signed by the parties, without seal, and a contract under the same circumstances, to which a party at the time of signing it puts a seal, or his finger on cold wax. In the case of a deed, i. e., an instrument under seal, it must be admitted that no consideration is necessary; and in the year 1765 it was solemnly adjudged in the Court of King's Bench, Pillans v. Van Mierop, 3 Burr. 1863, that no consideration was necessary when the promise was

B. - GENERAL PRINCIPLES.

WILKINSON V. OLIVEIRA.

IN THE COMMON PLEAS, JANUARY 27, 1886.

flowl astral

(Reported in 1 Bingham's New Cases, 490.)

The declaration stated that divers disputes and controversies had arisen between the defendant and divers other persons respecting the disposition of the estate and effects of one Dominick Oliveira, then late deceased, and the right of the defendant to the possession of any and what part thereof; in which disputes and controversies it became and was necessary, for the termination thereof in favor of the defendant, that the defendant should prove that the said Dominick Oliveira was, at the time he made his will, and at the time of his death, an alien, and a native of Portugal; that the plaintiff was lawfully possessed of a certain writing and paper, being a letter written by the said Dominick Oliveira in his lifetime to the plaintiff, which said letter showed, declared, and proved, that the said Dominick Oliveira was, at the time he made his will, and at the time of his death, an alien and a native of Portugal; that the plaintiff, at the request of the defendant, gave to the defendant the said letter, to be used and employed by the defendant for the purpose of proving that the said Dominick Oliveira was such alien and native of Portugal at the time he made his will and at the time of his death ; that the defendant used and employed the said letter for the said purpose; and that by means of the said letter and reduced into writing. That opinion has since been recognized in the same court, and several judgments founded upon it; all which judgments must be subverted, and what was there conceived to be settled law totally overturned, if the plaintiffs in this cause were not entitled to recover. But further: if a consideration were necessary, a sufficient one for the promise appeared upon the declaration in this case. The defendant was the administratrix of John Hughes, she had effects of his in her hands, she was liable to be called upon by the plaintiffs in an action, to show to what amount she had effects, and how she had applied them; and under these circumstances she promised to pay the demand which the plaintiffs had against her. But it was said, that it did not appear on the declaration that she had effects of John Hughes sufficient to pay all his debts. To what amount she had effects, or what debts were due from Hughes at his death, was known to the defendant only, and not to the plaintiffs. They applied to the person against whom they had a right of action; she promised to pay them, and under that promise they rested satisfied. This promise, if it did not import an admission of effects, must naturally be understood to mean that the defendant would pay the debt whether she had effects or not; and if it was not so meant, it could only be intended to amuse, mislead, and deceive the plaintiffs. And after such a promise the defendant ought not to be per mitted to say that she had not sufficient assets to pay this debt.”

« 이전계속 »