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support an express one, will be found collected and reviewed in the aote (a) to Wennall v. Adney,' and in the case of Eastwood v. Kenyon. They are cases of voidable contracts subsequently ratified, of debts barred by operation of law subsequently revived, and of equitable and moral obligations which, but for some rule of law, would of themselves have been sufficient to raise an implied promise. All these cases are distinguishable from, and indeed inapplicable to, the present, which appears to us to fall within the general rule, that a consideration past and executed will support no other promise than such as would be implied by law.

The rule for arresting the judgment upon the first count must therefore be made absolute.

Rule absolute.




OCTOBER 18, 1901.

(Reported in 180 Massachusetts, 15.) Bill in Equity by the owner of certain land subject to a mortgage assumed by her, to restrain the administrators of Willard Elmer, the holders of the mortgage, from foreclosing it, or disposing of it and the note secured thereby, and for an order to the defendants to discharge the mortgage and cancel the note, filed July 7, 1900.

The bill alleged that the plaintiff was the owner of a tract of land to which she derived title by a deed of one Herman E. Bogardus, by which deed she assumed and agreed to pay a certain mortgage of the premises given by Bogardus, which mortgage and the note for $1,300 thereby secured had been assigned to Willard Elmer, the defendants' intestate, that the defendants' intestate on or about January 11, 1898, executed and delivered to the plaintiff the following agreement: “Springfield, Mass., Jan. 11, 1898. In Consideration of Business and Test Sittings Reseived from Mme Sesemore, the Clairvoyant, otherwise known as Mrs. Josepbene L. Moore on Numerous occasions I the undersighned do hear by agree to give the above naned Josepbene or her heirs, if she is not alive, the Balance of her Mortgage note wbitch is the Herman E. Bogardus Mortgage note of

1 3 Bog. & Pal. 249.

? “ In Lampleigh v. Brathwait, it was assumed that the journeys which the plaintiff performed at the request of the defendant, and the other services he rendered, would have been sufficient to make any promise binding if it had been connected therewith in one contract; the peculiarity of the decision lies in connecting a subsequent promise with a prior consideration after it had been executed. (Probably at the present day, such service on such request would have raised a promise by implication to pay what it was worth ; and the subsequent promise of a sum certain would have been evidence for the jury to fix the amount.” – Erle, C. J., Kennedy v. Broun, 13 C. B. N. 8. 677, 740. See also Stewart v. Casey, [1892] i Ch. 104, 115.

Jan. 5, 1893, and the Interest on same on or after the last day of Jan. 1900, if my Death occurs before then wbitch she has this day Predicted and Claims to be the truth, and whitch I the undersighed Strongly doubt. Wherein if she is right I am willing to make a Recompense to her as above stated, but not payable unless death Occurs before 1900. Willard Elmer.”

The bill alleged, that by the foregoing instrument the premises were released and discharged from the operation of the mortgage deed, and the note secured thereby was paid in full and became null and void, upon the death of Willard Elmer, which occurred before the year 1900, to wit, on September 15, 1899.

The bill also alleged, that before the execution of the above agreement, at the request of Willard Elmer, the plaintiff gave to Elmer the business and test sittings referred to in the agreement as the consideration for the agreement, and at his request devoted much time and labor thereto.

The defendants demurred, and among the causes of demurrer alleged, that the above agreement annexed to the bill was a wagering contract and against public policy and void, and that it was without consideration.

In the Superior Court the case was heard by LAWTON, J., who made a decree sustaining the demurrer and dismissing the bill. The plaintiff appealed; and, at the request of the plaintiff, the judge reported the case for the determination of this court. If the demurrer was sustained rightly, the bill was to be dismissed; otherwise, the demurrer was to be overruled and the defendants were to answer to the plaintiff's bill.

W. H. McClintock (J. B. Carroll with him) for the plaintiff.
C. W. Bosworth, for the defendants.

HOLMES, C. J. It is hard to take any view of the supposed contract in which, if it were made upon consideration, it would not be a wager. But there was no consideration. The bill alleges no debt oi Elmer to the plaintiff prior to the making of the writing. It alleges only that the plaintiff gave him sittings at his request. This may or may not have been upon an understanding or implication that he was to pay for them. If there was such an understanding it should have been alleged or the liability of Elmer in some way shown. If, as we must assume and as the writing seems to imply, there was no such understanding, the consideration was executed and would not support a promise made at a later time. The modern authorities which speak of services rendered upon request as supporting a promise must be confined to cases where the request implies an undertaking to pay, and do not mean that what was done as a mere favor can be turned into a consideration at a later time by the fact that it was asked for. See Langdell, Contracts, $S 92 et seq.; Chamberlin v.

Whitford, 102 Mass. 448, 450; Dearborn v. Bowman, 3 Met. 157, 158; Johnson v. Kimball, 172 Mass. 398, 400.

It may be added that even if Elmer was under a previous liability




SECT. 11.]



to the plaintiff it is not alleged that the agreement sued upon was received in satisfaction of it, either absolutely or conditionally, and this again cannot be implied in favor of the plaintiff's bill. It is not necessary to consider what further difficulties there might be in the way of granting relief.

Bill dismissed.

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[Reported in 3 Leonard, 164.)

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In an action upon the case against Edmonds, the case was, that the defendant, being within age, requested the plaintiff to be bounden for him to another for the payment of 301., which he was to borrow for his own use; to which the plaintiff agreed, and was bounden, ut supra. Afterwards the plaintiff was sued for the said debt, and paid it. And afterwards, when the defendant came of full age, the plaintiff put him in mind of the matter aforesaid, and prayed that he might not be damnified so to pay 301., it being the defendant's debt: whereupon the defendant promised to pay the debt again to the plaintiff: upon which promise the action was brought. And it was holden by the Court that, although here was no present consideration upon which the assumpsit could arise, yet the court was clear that upon the whole matter the action did lie; and judgment was given for the plaintiff.'


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1 Walker v. Brown, 104 Ga. 357; Allen v. Bryson, 67 Ia. 591 ; Walker v. Irwin, 94 Ia. 448; Holloway v. Rudy, 60 S. W. Rep. 650 (Ky.); Cleaver v. Lenhart, 182 Pa. 285; Stoneburner v. Motley, 95 Va. 784, acc. See also Marsh v. Chown, 104 Ia. 556; Beaty v. Carr, 109 Ia. 183; Shepard v. Rhodes, 7 R. I. 470.

Bradford v. Roulston, 8 Ir. C. L. 468; Lonsdale v. Brown, 4 Wash. C. C. 148, 150; Viley v. Pettit, 96 Ky. 578; Pool v. Horner, 64 Md. 131 ; Stuht v. Sweesy, 48 Neb. 767; Wilson v. Edmonds, 24 N. H. 502; Hicks v. Burhans, 10 Johns. 243; Oatfield v. Waring, 14 Johns. 188; Greeves v. M'Allister, 2 Binn. 592; Landis v. Royer, 59 Pa. 95; Sutch's Estate, 201 Pa. 305; Silverthorn v. Wylie, 96 Wis. 69; Raife v. Gorrell, 105 Wis. 636, contra. See also Carson v. Clark, 2 Ill. 113; Montgomery v. Downey, 88 N. W. Rep. 810 (Ia.); Freeman v. Robinson, 38 N. J. L. 383 ; Chaffee v. Thomas, 7 Cow. 358 ; Comstock v. Smith, 7 Johns. 87; Boothe v. Fitzpatrick, 36 Vt. 681; Seymour v. Marlboro, 40 Vt. 171.

2 In the report of the same case in Godb. 138, nom. Barton and Edmonds' Case, it is said: “But if a feme covert and another at her request had been bounden in such a bond, and after the death of her husband she had assumed to have saved the other harmless against such bond, such assumpsit should not have bound the wife.”

Many cases in accord with Edmonds' Case are collected in 16 A. & E. Encyc. of Law (2d ed.), 300 seq. See also a note to Craig v. Van Bebber, 100 Mo.584, in 18 Am. St. Rep. 569. Since the Infants Relief Act, 37 & 38 Vict. c. 62, in England, however, all contracts of infants except for necessaries are absolutely void and cannot be ratified.

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[Reported in Buller's Nisi Prius, 129.]

An action was brought by an apothecary against the overseers of a parish for the cure of a pauper, who boarded with her son out of the parish, under an agreement made with him by the defendant Turner, who was the only acting overseer of the parish. The pauper was suddenly taken ill, and her son called in the plaintiff, who had attended her for four months, and cured her. After the cure Turner was applied to, and promised to pay the plaintiff's bill. It was held, that though there was no precedent request from the overseers, yet the promise was good, notwithstanding the Statute of Frauds; for overseers are under a moral obligation to provide for the poor. Secondly, that as Turner was the only acting overseer, the other was bound by his promise."




(Reported in Cowper, 284.]


In assumpsit the plaintiffs declared against Charles Hill, being in the custody, &c. : For that whereas James. Clarke, &c., by his last will, &c., did give and bequeath to the plaintiff's wife the sum of 601., &c., and of his last will and testament made the said Charles Hill sole executor, &c., and the said Charles Hill took upon himself the burthen and execution of the said will: And the said N. and A. further say that divers goods and chattels, &c., afterwards, &c., came to the hands of the said Charles Hill as executor of the said J. C., which said goods and chattels were more than sufficient to satisfy and pay all the just debts and legacies of the said J. C., &c., of which the said C. H. then and there had notice : By reason of which said premises, the said Charles Hill became liable to pay to the said N. and A. the said sum of 601. ; and, being so liable, he, the said C., in consideration thereof, afterwards, &c., undertook and faithfully promised to pay to them the said sum of 601., whenever, &c.

To this declaration the defendant demurred generally.
Mr. Le Blanc, in support of the demurrer.”

Mr. Buller, contra, for the plaintiff. The question is, whether the facts stated in this declaration, namely, that the defendant was execu1 See Paynter v. Williams, 1 Cr. & M. 810. -- ED.

Only so much of the arguments and decision is here given as relates to the ques son of “Consideration."

- Ed.

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tor and had assets, &c., are a sufficient consideration for a promise. As to that question, it is a settled point that, wherever an express promise is made upon a good consideration, an action lies. And the slightest ground is sufficient to maintain a promise. 1 Vent. 40, 41, Wells v. Wells; 1 Lev. 273, 8. C. ; Stone v. Withipool, Latch, 21. in which latter case it is laid down, “ that it is an usual allegation for a rule, that any thing which is a ground for equity is a sufficient consideration."

But here an express promise is made, and by the demurrer admitted. It is objected, however, that there is no averment that the funeral expenses are paid. The answer is, it is averred that he had assets to pay, which is alone sufficient, and so it was expressly held by Lord King, in the case of Camden v. Turner, Sittings after Tr., 5 Geo. 1. C. B. ; Select Cases of Evidence by Sir John Strange.

LORD MANSFIELD. This is a case in which the declaration particu. larly states that assets have been received by the defendant, the exec. utor, more than sufficient to pay all the testator's debts and legacies. If so, it most undoubtedly must be taken upon the pleadings that there was sufficient to discharge the funeral expenses, because they are payable first; consequently, if there was less than the amount of them, there could not be sufficient to discharge the debts and legacies. The declaration then goes on to state that, in consideration of there being full sufficient assets as aforesaid, the defendant undertook and promised to pay the plaintiff his legacy. No doubt then but, at any time after an executor has assented, the property vests; and if it be a pecuniary legacy, an action at law will lie for the recovery of it. Formerly, upon u bill being filed in chancery against an executor, one part of the prayer of it was, that he should assent to the bequests in his testator's will. If he had assets, he was bound to assent. And when he had assented, the legacy became a demand which in law and conscience he was liable to pay. But, in the present case, there is not only an assent to the legacy, but an actual promise and undertaking to pay it; and that promise founded on a good consideration in law, as appears from the cases cited by Mr. Buller, particularly the case of Camden v. Turner,' where acknowledgment by an executor, “ that he had enough to pay,” was held a sufficient ground to support an assumpsit. Here the defendant, by his demurrer, admits he had sufficient to pay; therefore this is not the case that Mr. Le Blanc has been arguing upon; but it is the case of a promise made upon a good and valuable consideration, which, in all cases, is a sufficient ground to support an action. It is so

It is seen

1 in cases of obligations which would otherwise only bind

man's conscience, and which, without such promise, he could not be compelled to pay. For instance, where an infant contracts debts during his minority; if after he comes of age he consents to pay them, an action lies. So a conveyance executed by an infant, which he was compellable to do by equity, is a good conveyance at law. Co. Lit., Attornment,

In this case the promise is grounded upon a reasonable and conscientious consideration : nimely, that the defendant had assets to

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815 a.

1 Sittings after risity Term, 5 Geo. I, C. B., coram King, C. J.

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