the defendant 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 the other 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 signifies 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, an action will lie against him for that, though nobody could have compelled him to do the thing. And upon the same principle, it was holden, (a) that if a carpenter undertakes to build or repair a house, and he does it unskilfully, an action on the case will lie against him for his misfeazance, though no consideration be alleged. 6. OF PROMISES UPON A CONSIDERATION PREVIOUSLY EXECUTED. If the consideration is wholly past and executed, it will not support a subsequent promise, unless the consideration was executed either at the express or implied request of the party promising. For it is not reasonable that one man should do another a kindness, and then charge him with a recompence; as it would be obliging him whether he would or not, and bringing him under an obligation without his concurrence. This was determined in the case of Hunt v. Bate; (b) the servant of a man was arrested and imprisoned in the Compter in London for a 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; after this the surety was compelled to pay the condemnation, amounting to thirty-one pounds, &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. But it was afterwards moved in arrest of judgment, that the action did not lie. And by the opinion of the Court," the action 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 (a) 2 Ld. Raym. 919, 920. 5 Term Rep. (b) Dy. 272. a. 149. to do so much, but he did it of his own head." Wherefore judgment was given for the defendant. But, in the same report, it is added, that in another like action brought upon a promise of twenty pounds 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; it was holden that this was a good consideration, although the marriage was executed and past before the undertaking and promise, because the marriage ensued the request of the defendant. And, in an action on the case, (c) in consideration that the plaintiff, at the request of the defendant, had taken such a one apprentice, the defendant undertook that he should serve truly, &c., it was adjudged that this was a good consideration, although it were passed, because it was at the request of the defendant. So, in consideration of one hundred and ten pounds given to a stranger, (d) at the instance of the defendant, the defendant undertook; and adjudged a good consideration, although it was passed, because it was at the instance of the defendant. And the distinction taken in these cases was agreed to by all the Justices in Sidenham and Worlington's case, (e) which was an action of assumpsit, wherein the plaintiff declared, that he, at the request of the defendant, was surety and bail for J. S., who was arrested into the King's Bench upon an action of 30l., and that afterwards for the default of J. S. he was constrained to pay the 30l.; after which, the defendant, meeting with the plaintiff, promised him, for the same consideration, that he would repay that 30%, but which he afterwards refused; and for the recovery thereof the action was brought. It was objected that this consideration could not maintain the action, because the consideration and promise did not concur and go together. Anderson, Ch. J. said, "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 upon a consideration of marriage, 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 warranty; for that such warranty ought to have been made or given at such time as the horse was sold: Periam, Justice, conceived that the action did well lie, and he said, "This case is not like unto the cases which have been put on the other side, for there is a great difference betwixt contracts and this case; for in contracts upon sale, the consideration, the promise, and the sale ought to meet together; for a contract is derived from con and trahere, which is a drawing together, so that in contracts every thing which is requisite ought to (c) Hil. 36. Eliz. Harris's case. Dy. 272. a. n. 31. (d) East. 38. Eliz. Foster's case. Dy. 272. a. n. 31. (e) 2 Leon. 224. concur and meet together, viz. the consideration on the one side, and the sale or 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 on the case upon a promise, the declaration is laid that the defendant for and in consideration of 20l. to him paid, afterwards, 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 of Hunt v. Bate, would prove the present case; for in that case it was adjudged that the action would not lie, because the consideration was precedent to the promise, and because it was executed and determined long before. But it was holden by all the Justices, that if Hunt had requested Bate to have been surety or bail, and afterwards Hunt had made the promise upon that consideration, the same had been good; for that the consideration did precede, and was at the instance and request of the defendant."-Rhodes, Justice, agreed with Periam, and he said, "That if one serve me for a year, and hath nothing for his service, and afterwards, at the end of the year, I promise him 201. for his good and faithful service ended, he may have and maintain an action upon the promise; for it is made upon a good consideration but if a servant hath wages given him, and his master, ex abundanti, doth promise him 10l. after his service ended, he shall not maintain an action for the 107., because there is not any new cause or consideration preceding the promise; which difference was agreed by all the Justices: and afterwards, upon good and long advice and consideration had of the principal case, judgment was given for the plaintiff; and they much relied upon the case of Hunt and Bate. And in the case of Tounsend v. Hunt, (f) where the plaintiff, at the request of the defendant, had made a general release to him and his wife (she being executrix of F. T. under whose will the plaintiff claimed a legacy of 60l., 531. of which he had been paid, and had afterwards executed the release in question), the defendant in consideration thereof promised the plaintiff, that if his wife did not pay the seven pounds, residue of the legacy in her life-time, he would pay it after his wife's death: It was also holden, that though the promise was made after the release, yet, forasmuch as the release was made at the defendant's request, and the defendant had the benefit of it, the promise upon this consideration was good enough. So, also, in the case of Bosden v. Sir John Thinn, (g) where the plaintiff declared, that whereas the defendant requested the plaintiff to give his credit for two tuns of wine for one Roberts, to one Fludd, amounting to 50l.; he thereupon (f) Cro. Car. 408. C (g) Cro. Jac. 18. Yelv. 40. gave his bond of 100l. for the payment of the 50%., and for the nonpayment thereof was sued, and enforced to pay 70l.; and showing this to the defendant, he, in consideration of the premises, assumed to the plaintiff to pay the 70l., &c.-It was moved, that this promise was not sufficient, it being upon a consideration past. But the Court held, that the consideration and promise were valid; because Roberts, upon the plaintiff's undertaking at the defendant's request, had credit given him by Fludd; and the plaintiff was damnified by reason thereof, which in conscience the defendant ought to satisfy. Where a party has derived a benefit from a past consideration, the law, in some instances, will raise an implied request; as where a man pays a sum of money, or buys any goods for me without my knowledge or request, and afterwards I agree to the payment, or receive the goods, this is equivalent to a previous request. (h) So, in consideration that the plaintiff had buried the defendant's son or wife, during the absence or separation of the father or husband; this is good without any previous request. (i) 7. OF PROMISES MADE UPON A CONSIDERATION If a consideration be executed in part only, and is continuing, it will support a subsequent promise. This was settled in the case of Pearle v. Unger, (k) which was an action of assumpsit, wherein the plaintiff declared, that he was possessed of certain lands for years, the defendant, in consideration he had occupied the land, and had paid the rent to the defendant, viz. 30l. per annum, all the time he had occupied it, assumed to save him harmless for the occupation of the land always during the term, as well for the years past as to come; and alleged that before the time of the promise, viz. such a day, &c. his beasts were taken damage feasant, &c., and that the defendant had not saved him harmless of it. It was moved in arrest of judgment, that there was no consideration to maintain the action; for the consideration and cause of the promise was a thing done before, wiz. the occupation and payment of the rent; which being past, are no considerations for a thing future to be done. But it was adjudged for the plaintiff; for the consideration, that he was in possession, and had paid his rent, and was to pay his rent, is sufficient to cause the other to defend his possession for the time past and to come. So, where one being possessed of a shop () agreed to demise it to another, paying to him 40s. by the year, and 10s. for the last quarter; and for the perfecting the agreement each gave the other 1s., (4) See 1 Saund. 264. n. 1. (i) T. Raym. 260. Dy. 272. a. n. b. (k) Cro. El. 94. (1) Jones v. Clark, 2 Bulst. 75. and afterwards, in consideration of the premises, the lessee promised to give the lessor 301., and assumed to pay it; in consideration whereof, and in performance of the contract, the lessor made a lease to the lessee accordingly; and the action was brought for the 30%.-It was objected, that there was no good consideration expressed to raise the promise for the 30%, the same being grounded upon a consideration that was past, perfect, and executed, and so no good consideration. Sed per curiam. The lease here is made after the promise; the agreement is in performance of all, not of part; it was on the lessor's part to make the lease to the defendant, and on his part to pay the rent of 40s.; and the 30%. in consideration of his quietly enjoying the same, which is a valid promise, founded upon a good and sufficient consideration. And, in the case of Warcop v. Morse, (m) where the plaintiff declared, that in consi deration he had bought of the defendant three parcels of land on such a day, the defendant afterwards on another day, promised to make him a sufficient assurance. It was adjudged that the consideration was not absolutely past, for the assurance was the substance of the sale. So, a promise on a consideration executed is good, if there were a duty before; as, where the plaintiff declared that on such a day, the defendant was indebted to him in a certain sum, for divers goods sold to him; and for money lent; and also for money due upon an account stated; and being so indebted, the defendant in consideration thereof afterwards, on such a day promised to pay, &c. It was holden, that this is a good consideration to raise an assumpsit; for the continuance of the debt is a consideration continuing and sufficient to support an action. (n) 8. OF A PROMISE TO PAY A PRECEDENT DEBT Where a man is under a moral obligation, which no court of law or equity can enforce, and promises, the honesty and rectitude of the thing is a valid consideration: As, if a man promise to pay a just debt, the recovery of which is barred by the statute of limitations; (0) or, if a man after he comes of age, (p) promises to pay a meritorious debt contracted during his minority, but not for necessaries; or if a bankrupt, in affluent circumstances after his certificate, promises to pay the whole of his debts; (g) or if a man promise to perform a secret trust, or a trust void for want of writing by the statute of frauds. (r) In these, and in many other instances, though the promise gives a compulsory remedy where there was none before either in law or equity, yet as the promise is (m) Cro.El. 138. (n) Hodge v. Vavisor, 1 Rol. Rep. 413. Johnson v. Astell, 1 Lev. 198. Mo.854. (o) 1 Ld. Raym. 389. (p) Stra. 690. 1 Term Rep. 648. |