interest, or even compound interest, may be recovered where there has been a course of dealing between the parties, or usage to that effect (d); yet that a debtor is not bound, or affected by the custom of his bankers to charge interest upon interest, by making rests in their accounts, unless it can be proved he was aware of such their practice (e). In a case before Best, C. J., at Nisi Prius (f), his lordship held, that if there be a general usage applicable to a particular trade or profession, a person employing another in such trade or profession, will be taken to have dealt with him according to that usage; but that a usage for a veterinary surgeon to charge for his attendance, "when there was not much medicine required," was too uncertain.

It is clear that a promise to a particular effect, may be implied in any given case, from the circumstance of the parties having invariably, on former and similar occasions, adopted any particular terms or course of dealing (g). Thus interest may be demanded and allowed as a matter of right, if allowed and paid on prior and similar accounts between the parties (h).

There are instances in which the law raises a promise from the acts of a party, and will not admit of evidence of his intention to commit a tort in disavowal of such tacit promise: for no man can set up and take advantage of his own wrong. Thus, if a party seduce away and harbour an apprentice, the master may sue such party in assumpsit for the work and labour of the apprentice (i). So assumpsit lies to recover the value of goods, as sold to the defendant, if he by fraud induced the plaintiff to sell them to an insolvent person, and afterwards obtained them for his own benefit (k). And upon the same principle seems to be founded the doctrine, that if a husband wrongfully expel his wife from his roof, and leave her unprovided with necessaries, he is liable, upon an implied promise, to any person who supplies her with

(d) See Index, tit. Interest.

(e) See Moore v. Voughton, 1 Stark. R. 487.

(f) Sewell v. Corp, 1 C. & P. 392. (g) See Bruce v. Hunter, 3 Campb. 467; Dentonv. Robie, Id. 496; Eaton v. Bell, 5 B. & Ald. 24.; Gwyn v. Gobby, 4 Taunt. 346; Newal v. Jones, M. & Malk. 449; Calton v. Bragg, 15 East, 223.

(h) See Index, tit. Interest.

(i) Lightly v. Clouston, 1 Taunt.

112; Foster v. Stewart, 3 M. & Sel. 191. And a tenancy may sometimes be implied against a person who might be treated as a trespasser at the election of the landowner. See post. As to implied warranties of title, &c. see post.

(k) Hill v. Perrott, 3 Taunt. 274; Abbotts v. Barry, 5 Moor, 98. Edmeads v. Newman, 1 B. & C. 418; 2 D. & R. 568, S. C. See 1 Chit. Pl. 5th ed. 112, 385.

them, although the husband gave public notice, or even a special warning to the party, not to furnish the wife with necessaries upon his credit (). And we may refer to this reasoning many of the cases which we shall hereafter notice, in treating of the action for money paid, and in which it has been held that a prior request by the defendant to the plaintiff to pay money for his (the defendant's) use, and a promise of re-payment shall be inferred, although, in fact, no such request or promise was made: the plaintiff having been compelled to make the payment by some wrongful act or omission of the defendant. And we shall have occasion to mention many instances in which it has been held that a party may waive a tort, and maintain an action for money had and received. So, where a pauper had his leg accidentally fractured in one parish, and was conveyed to the next house in an adjoining parish, and was confined there and visited by the overseer, and attended by the surgeon who attended the parish poor, with the knowledge of the overseer of the latter parish, it was decided that the surgeon might have assumpsit against such overseer for the expenses of the cure; for there was not any obligation against the parish where the accident happened, to pay these expenses, and the overseers knowing of and not repudiating the surgeon's attendance, was equivalent to a request (m). And upon the same ground of a general, moral, and legal obligation, and non dissent to the plaintiff's acts, it was held by Lord Tenterden, C. J., in Nicholl v. Allen (n), that if the father of an illegitimate child acknowledge her as his offspring, and know that she is boarded and clothed by the plaintiff, and neither express dissent nor take her away, he is impliedly liable for the expenses.

There are also cases, in which the law will imply a promise or contract to pay money, although in its origin the transaction was totally unconnected with contract, and there has been no promise in fact; there being a legal duty to pay the money. Upon this principle, debt lies on the judgment of a court of record in this country (0). And assumpsit lies upon an implied promise to pay money due upon judgments obtained in foreign courts, unconnected with this country (p); or in this country upon an

(1) See post, Chap. 2.

(m) Lamb v. Bunce, 4 M. & Sel. 275; sce Tomlinson v. Benthall, 5 B. & C. 739; 8 D. & R. 493, S. C.

(n) 3 C & P. 36; see Hodges v.

Hodges, Peak, Add. C. 79.

(0) 3 Bla. C. 160; 1 Chit. Pl. 5th ed. 126.

(p) Walker v. Witter, Dongl. 1 & 4; Hall v. Obber, 11 East, 118, 124, 25;

Irish judgment (q); or a Scotch decreet (r); or a Jamaica judgment (s); and even to recover money due on the decree of a colonial court for payment of a balance due on a partnership account (t). But neither assumpsit nor debt can be sustained on the decree of the Court of Chancery for a specific sum of money, founded on equitable considerations only (u); or on the mere interlocutory order of a court of law (x).

We shall presently have occasion to explain that a promise cannot be implied from a mere moral obligation, not supported by a legal liability (y).

The principle is that promises in law exist only in the absence of express promises: expressum facit cessare tacitum (2). Therefore a usage of trade cannot be set up in contravention of an express contract: thus, where A. agreed to sell to B. a quantity of prime bacon, which B. weighed and examined, and paid for by a bill at two months; but before the bill became due, gave notice to A. that the bacon did not answer the purpose; it was held that B. could not give in evidence a custom that the buyer was bound to reject the contract, if at all, at the time of examining the goods (a). And although, in the absence of an express stipulation, an outgoing tenant is impliedly entitled to an allowance for seed and labour, &c., in the last year of his tenancy, the benefit of which he has not derived, and which will be received by the in-coming tenant; that is, if there be a custom in the country to that effect; yet the custom can furnish no right by implication, where the tenant holds upon a lease or contract containing express

Douglas v. Forrest, 1 M. & P. 663; 4 Bing. 686, S. C. See Buchanan v. Rucker, 1 Campb. 63; 9 East, 192, S. C. But the judgment is inoperative here, if clearly contrary to natural justice or the law of the country where it was pronounced, Becquet v. M'Carthy, 2 B. & Ad. 951, or founded upon a mistake of the law of the country where the original contract was made, &c., see Novelli v. Rossi, 2 B. & Ad. 757; Chitty, Tr. B. 1553, S. C.

(q) Harris v. Saunders, 4 B. & C. 411; 6 D. & R. 471, S. C.

(r) Douglas v. Forrest, 4 Bing. 686 ; 1 M. & P. 663, S. C.

(s) 2 Chit. Pl. 5th ed. 243. (t) Henley v. Soper, 8 B. & C. 16; Sadler v. Robins, 1 Campb. 253.

(u) Carpenter v. Thornton, 3 B. &

Ald. 52; Henley v. Soper, 8 B. & C. 20, per C. J.

(x) Emerson v. Lashley,3 H. Bl. 248; Fry v. Malcolm, 4 Taunt. 705; Carpenter v. Thornton, 3 B. & Ald. 56. (y) Post. 44.

(2) See per Ashurst and Baller, Js., in Touissaint v. Martinnant, 2 Term R. 104, 105; Cutter v. Powell; 6 T. R. 320; per Lawrence, J., in Cowley v. Dunlop, 7 T. R. 568; Cook v. Jennings, id. 381; per Le Blanc, J., in Buckler v. Buttivant, 4 East, 85; and Morsom v. Kymer, 2 M. & Sel. 316, per Bayley, J., in Grimman v. Legge, 8 B. & C. 326; Read v. Rann, 10 B. & C. 438.

(a) Yeats v. Pim, 2 Marsh. R. 141. 6 Taunt. 446, S. C. See Webb v. Plummer, 2 B. & Ald. 746.

terms and provisions upon the subject, and which either directly contravene the custom, or fairly evince that the parties must have contemplated that it should have no application to their case (b).

The French law, upon the subject of implied promises, is not unworthy of our notice. "Certain engagements are formed without the intervention of any agreement, either on the part of him who is bound thereby, or on his, towards whom he has become bound; some result from the simple authority of law; others spring from a fact personal to the party who finds himself bound. The first are engagements formed involuntarily, such as those between neighbouring proprietors, and those of guardians and other administrators, who are not at liberty to refuse the functions cast upon them. The engagements which spring from a fact personal to him who finds himself bound, result either from quasi contracts, or from quasi crimes. Quasi contracts are the purely voluntary acts of the parties, from which result any engagements whatsoever towards a third person, and sometimes a reciprocal engagement of two parties. When a person voluntarily manages the affairs of others, whether the proprietor is aware of such management, or whether he is ignorant of it, he who so manages contracts a tacit engagement to continue the management which he has begun, and to complete it until the proprietor shall be in condition to provide for it himself: he must himself take the charge in like manner of all the dependences of the same affairs (c). He subjects himself to all the obligations which would result from an express commission given him by the proprietor (d).”

2ndly. Of the Consideration.—A valid and sufficient consideration or recompence for making, or motive or inducement to make the promise upon which a party is charged, is of the very essence of a contract not under seal, at law and in equity; and must exist, although the contract be reduced into writing: otherwise, the promise is void, and no action can be maintained thereon (e). Ex

(b) See Index, tit. Custom of the Country.

(c) Perhaps our law would not imply a promise, fully to this extent; but there would be a liability if by gross neglect or misconduct in the course of an employment voluntarily undertaken, and in part performed, an injury resulted to the party for whom the business was so undertaken, see post 32, 3, and Index, tit. Bailees.

(p) French Civil Code, Book 3, tit. 4.

(e) Noy's Max. 21; Sharington v. Strotton, Plowd. C. 302, 305, 309; Dyer, 90 b; Dr. & Stud. 2, c.24; Rann v. Hughes, in Error, 7 Term R. 350, n. a; 7 Bro. P. C. 550, S. C.; 1 Fonbl. Tr. Eq. 5th ed. 335, n. a; Barrell v. Trussell, 4 Taunt. 117. "A bargain without a consideration is a contradiction in terms, and cannot exist;" per Lord Loughborough, in Middleton v. Lord Kenyon, 2 Ves. jun. 188.

nudo pacto non oritur actio. The earliest records of our law, shew that this maxim was always recognized in this country (f). This principle is not peculiar to English law. It obtained, generally speaking, in the civil law; and indeed, we have borrowed from the Roman jurists, the term nudum pactum, as applied to promises without consideration (g). It is equally a maxim in the French law that a consideration or cause is essential to the validity of a promise (h). A gratuitous undertaking may form the subject of a moral obligation,-it may be binding in honour,--but does not create a legal responsibility. It is not unreasonable to assume that it was entered into improvidently: nor can the party who has received such promise have sustained any serious injury from the neglect to observe it. The law cannot reasonably be expected to enforce an imperfect obligation of this nature. It has afforded to parties the means of rendering even a gratuitous engagement binding, viz. by the execution of a deed which imports deliberation; an exception which was probably permitted by analogy to the Roman Stipulations, which were promises made in a certain prescribed form, and, it seems, under magisterial sanction, or ratified before official authority, and were binding, though without consideration.

The rule as applied to simple contracts, seems to be almost without exception in the English law. It has, indeed, been supposed, though never formally decided, that written agreements, and mercantile contracts between mercantile men, need no conderation (i): but this doctrine has been entirely and deservedly exploded (k). Even in the case of bills of exchange and promissory notes, it is not true, as might be supposed from the position in Blackstone's Commentaries (7), that a consideration is not necessary to give them effect. The general rule is, that a consideration is essential, even in the instance of such instruments, although the legislature, and our courts, have ever evinced the most anxious desire to encourage and facilitate their circulation. When an

(f) See 11 Hen. 4. 33. 23 a. 17 Ed. 4.4; 3 Hen. 6. 36; Bro. Action sur le Case, 40.

(g) 2 Bla. C. 445. Nudum pactum est ubi nulla subest causa præter conventionem.

(h) "L'obligation sans cause, ou sur une fausse cause, ou sur cause illicite,

ne peut avoir aucun effet." French Code Civil (1804), Book 3, tit. 3, s. 4. See 1 Pothier, Tr. on Obl., p. 1, c. 1, s. 1, art. 3, s. 4.

(i) See per the Judges, in Pillans v. Mierop, 3 Burr. 1663.

(k) Ante, 4, 5.

() 3 Bla. C. 445, 6.