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And in assumpsit on an agreement to pay money in consideration that the plaintiff would discharge a third person from custody, the court seemed to be of opinion that, if the latter was illegally in custody, the promise was void; but they considered that it should be intended, after verdict, that the arrest was legal; the declaration averring that it took place on process duly issued out of an inferior court (?). A receiver appointed by the Court of Chancery, brought an action for a debt due from E. F. to A. B. and C. (whose estate he was empowered to collect), and averred that E. F. being liable to him the plaintiff) as receiver, the defendant promised to pay him, in consideration that he would give E. F. time for payment, and in case of E. F.'s default. held on a motion to arrest the judgment, that the declaration showed a sufficient consideration for the defendant's promise ; for, as receiver, the defendant had authority to forbear proceedings for the debt, and to enter into the contract (m).
It is not necessary that the forbearance should extend to an entire discharge of proceedings; nor is it material whether the proceedings to be forborne have been commenced or not, or are at law or in equity (n). A forbearance or suspension of proceedings for a limited period, with power to continue them if the debt be not then paid, is sufficient. And where a declaration stated the consideration to be an agreement for forbearance (not showing for what time), and there was an averment that the plaintiff forbore for a long time, it was held after verdict upon a motion in arrest of judgment, that the declaration was sufficient; for it shall be intended that the plaintiff agreed to forbear for a convenient or reasonable time, and that is a sufficient consideration (o). So where M. was in custody on execution pursuant to a warrant of attorney, by which he had agreed that execution should issue from time to time for certain instalments of a mortgage debt, the defendant in consideration that plaintiff would discharge M. out
which declarations had been supported shaw, 1 New R. 132. afler verdict, although they did not (1) Atkinson v. Settree, Willes R. clearly point out a ground of liability 482 ; see Lloyd v. Lee, Stra. 94; 2 to the debt, on the part of any parti- Saund. 137 c, note, and note b, 5th ed. cular person; but it might be pre- (m) Willutts v. Kennedy, 8 Bing. 5. sumed after verdict, that the plaintiff (n) Bidwell v. Catlon, Hob. 216; had proved at the trial that there was 2nd res.; Poolly v. Gilberd, 2 Bulstr. somebody who could have been sued, 41; Parker v. Leigh, 2 Stark. R. 229, in support of the averment, that the 230. plaintiff did forbeur ; and see infra, (0) Mapes v. Sidney, Cro. Jac. 683; notes (1), (m); Murshall v. Birken- 1 Rol. Ab. 24, pl. 23.
of custody, undertook that he should, if necessary, be forthcoming for a second execution; it was held that defendant's promise was binding on him (p). And it is a sufficient consideration for a promise, that the plaintiff holding a bill of sale against the goods of a third person for a debt, agreed to give up the goods, and forbear to sell them (q). But it seems that a promise in consideration of the stay of an action “ for a little time (r),” or “ for some time," is not binding (s); either on the ground of uncertainty, or of the absence of detriment to the creditor, and advantage to the debtor.
It is not material that the party making the promise, in consideration of forbearance to a third person, has no interest in the transaction, and cannot be benefited by the delay. If a person employed by the administrator of a deceased debtor to wind up the concerns of the deceased's business, give an undertaking to a creditor of the deceased to furnish money to meet an acceptance, which such creditor has given, in furtherance of an accommodation arrangement for delaying payment, in the hope that funds may be forthcoming, he is liable on such undertaking, though he were merely a clerk, and had no interest in the goods sold by the creditor, and had not received any funds applicable to the discharge of the debt (t). And it has been recently decided, that the forbearance by the plaintiff at the defendant's request, to enforce a fieri facias against the goods of a third person for 601. is a valid consideration for the defendant's promise to pay the plaintiff 1071. in seven days. The Chief Justice observed, “ If the inconvenience of an execution against these goods at the time in question was so great that the defendant thought proper to buy it off at such an expense, I do not see that the consideration is insufficient for the promise (u).”
INTRUSTING A PARTY with PROPERTY.-The intrusting a person with property is a consideration, in itself, for his promise
(p) Atkinson v. Bayntum, 1 Bing abouts," and held good after the verN. C. 444.
dict, in respect of the videlicet. (9) Barrell v. Trussell, 4 Taunt. ($) 1 Rol. Ab. 23, pl. 26; see 3 117.
Chit. Com. L. 67, note 6. (r) i Rol. Ab. 23, pl. 5 ; Baker v. (t) Maud v. Waterhouse, 2 C. & P. Jacob, 1 Bulstr. 41; Seckford's case, 579; and see further post, as to guaCro. Eliz. 455; Tolhurst v. Brickin- rantees. den, Cro. Jac. 250. In Baker v. Jacob, (u) Smith v. Algar, 1 B. & Ad. 603. the declaration laid the consideration “ What damages the plaintiff may reto be a forbearance “ for some little cover in an action on such promise is time, to wit, a fortnight, or there- another question ;" per Parke, J., id.
that, if he act upon the trust, he will faithfully discharge it. Therefore, though an action will not lie for not doing a thing where there is no such consideration, as reward, &c. to uphold a promise do it; yet where there is a delivery of goods and chattels or monies to a person who undertakes to do something respecting them, even without any reward for his trouble, an action will lie on this bailment, if there be a neglect in the management by which the goods are spoiled, &c. The obligation in this case arises ex mandato, and is called in Bracton, Mandatum. Vinnius (x), in his “ Commentary on Justinian," defines mandatum to be contractus quo aliquid gratuito gerendum committitur et accipitur. This undertaking obliges the undertaker to a diligent management. Bracton (y) says, contrahitur etiam obligatio non solum scripto et verbis sed et consensu sicut in contractibus bona fidei ; ut in emptionibus, venditionibus, locationibus, conductionibus, societatibus et mandatis.
This distinction is clearly taken in the Year Book, 11 H. 4,33, where an action was brought against a carpenter, for that he had undertaken to build the plaintiff a house within such a time, and had not done it; and it was adjudged the action would not lie, no consideration being laid. But there the question is put to the court; what if he had built the house unskilfully? And it was agreed, that in such case the action would have lain (z).
In an action of assumpsit the declaration was, that whereas the plaintiff being obliged to J. S. in 401., for the payment of 201., and the bond being forfeited, delivered 101. to the defendant, to the intent that he should pay it to J. S. in part of payment without delay; in consideration whereof, the defendant assumed, &c. It was assigned for breach, that defendant had not paid the money; whereupon J. S. had sued the plaintiff for the debt: and on non assumpsit pleaded there was a verdict for the plaintiff. And it was moved in arrest of judgment, that here was not any consideration, because it was not alleged that the plaintiff delivered the money to the defendant at his request; and the acceptance of it, to deliver to another without delay, could not be any benefit to the defendant to charge him with this promise. Sed non allocatur; for being that he accepted this money to deliver it, it was a good consideration to charge him.
(.1) Lib. 3, tit. 27, 684. (y) Bract., lib. 3, 100.
(z) Vide 19 Hen. 6, 19; Bro. tit. Action sur le Cuse, 24; 48 Edw. 3, 6.
And judgment was given for the plaintiff, which was affirmed on writ of error (a).
This principle was elaborately considered and acted upon by Holt, C. J., and all the judges, in the celebrated case of Coggs and Barnard (b): which arose upon an action upon the case, wherein the plaintiff declared, that whereas the defendant assumed safely and securely to take up several hogsheads of brandy, then in a certain cellar in D., and safely and securely to lay them down again in a certain other cellar in W.; the said defendant and his servants and agents, so negligently and improvidently put them down again into the said other cellar, that for want of care in the defendant, his servants, and agents, one of the casks was staved, and a great quantity of brandy was spilt; a motion was made in arrest of judgment, because it was not alleged in the declaration, that the defendant was a common porter, nor averred that he had any thing for his pains. And as to the objection that there was no consideration to ground the promise upon, and that the undertaking was nudum pactum, Holt, C. J., and the rest of the court answered, that the owner's trusting the bailee with the goods, was a sufficient consideration to oblige him to a careful management. Indeed, if the agreement had been executory, to carry these brandies from one place to another such a day, the defendant had not been bound to carry them; but this was a different case, for assumpsit did not only signify a future agreement, but in such a case as this, it signified an actual entry upon the thing, and taking the trust upon himself. And if a man will do that, and miscarries in the performance of his trust, by reason of gross neglect, an action will lie against him for that, though nobody could have compelled him to do the thing
The case of Whitehead v. Greetham (c), is a strong authority upon this subject. The declaration was not in case for a tort, as in some of the instances before referred to, but in assumpsit. One of the counts stated, that the plaintiff had retained the defendant at his request, to lay out 7001. in the purchase of an annuity ; that the defendant promised to use due care to lay out the money securely; that the plaintiff, confiding, &c., delivered
(a) Wheatley v. Low, Cro. Jac. 1 Salk. 26; 3 id. 11, S. C. 668.
(c) 10 Moore, 183; 2 Bing. 464; (6) Lord Raym. 909; Com. 133; and M'Clel. & Y. 205, S. C.
the money to the defendant for that purpose ; but that he laid it out on insufficient security, &c. On error, in the Exchequer Chamber after verdict, it was held that the mere delivery of the money was a sufficient consideration for the promise ; that it was not fatal to the count, that it did not shew that the defendant was to receive any reward for his services; and that if the consideration were insufficiently stated, no advantage could be taken of the defect after verdict.
The late case of Shillibeer v. Glynn (d) is a still more decisive authority on the subject. There the declaration stated, that the plaintiff being about to proceed to N., paid money to the defendants in London, that they might cause it to be paid to him at N. on a certain day; that the defendants received the money for that purpose from the plaintiff, and that thereupon afterwards, in consideration of the premises, the defendants promised to cause the money to be paid to the plaintiff at N., and it was held that the declaration disclosed a sufficient consideration for the promise. So if A. remit money to B. to pay to C., and B. promise C. to pay it to him, C. may sue B. on such promise for money had and received (e).
And in the case of Elsee v. Gatward (f), this doctrine was fully recognised. It was an action upon the case. The first count stated that the plaintiff retained the defendant, who was averred to be a builder, to repair a house before a given day; that the defendant accepted the retainer, but did not perform the work, per quod the house was injured, &c.; and the court held, on special demurrer, that this count could not be supported, because it was for a mere nonfeasance, and it did not appear that the defendant was to receive any reward ; that the defendant, though he was a carpenter, was not bound to do all work tendered to him; and that the word retained did not necessarily import consideration; and they said, that the count would have been bad, if framed in assumpsit. The second count stated, that the plaintiff being possessed of some old materials, retained the defendant, to perform the carpenter's work on certain buildings of the plaintiff, and to use those old materials; but that the defendant, instead of using those, made use of neuones, thereby increasing the expense. And this count for the misfeasance, was
(d) Shillibeer v. Glynn, 2 M. & W. 143, and cases there cited.
(e) Lilly v. Hays, 1 N. & P. 26. (f\5 T. R. 143.