Assumpsit. Sometimes signifies not only a Promise but an Actual Undertaking of the Business, an Actual Entry, upon the Execution of the Promise.
Ass[umpsit] Ind[ebitatus] will lie against A.B. upon such a Promise as this viz. “my Brother will give you an handsome gratuity, for the Trouble you shall be at in that affair which I promise you shall not be less than £300.”
Assumpsit. In Assumpsit we ought to declare as the Agreement was.
Agreement. If the Agreement is to deliver 6 Sieves, part of one sort and part of another, it is not necessary in the Declaration in Assumpsit to say how many of one sort and how many of the other. The Defendant shall have his Election to deliver as many of one sort and of the other as he will.
Every Mans Agreement or Bargain ought to be performed as he understood it. And if a Man will agree to Pay his Money, before he had the Thing for which he ought to pay it, and will rely upon his Remedy to recover that Thing, he ought to perform his Agreement. But He ought not to be compelled to give Credit when he did not intend it. Therefore, if 2 Men, A and B, agree, A that B shall have his Horse, and B that he will pay 10s. to A for him: because B may have an Action for the Horse, yet there is no reason that A should have an Action for the Money before the Horse is deliverd.
In executory Agreements, if the Contract be, that one shall do an Act, and for the doing thereof, the other shall pay &c. the Performance of the Act is a Condition preecedent to the Payment. Except
1, a Day appointed for Payment of the Money happen before the Thing can be performed. For in this case it is plain the Party relied upon his Remedy. 2, The day appointd for Payment is to happen subsequent to the Performance. In this Case Performance is a Condition preecedent, and must be averred in an Action for the Money.
Averment. There must be an Averment of Performance of the Act or Thing to be done in a Declaration on a Promise to pay Money that was made in Consideration of that Act or Thing.
Assumpsit. May be brought for Money paid upon a Policy of Insurance by Mistake (thinking the ship to be lost when it was not).2
But assumpsit will not lie, against a solicitor for Money given him, to bribe the Custom House Officers and laid out by him accordingly. Yet assumpsit may be brought for Money paid by Mistake on an Account.
Averment. If I am bound in a Recognisance that Mr. Foreman3
shall appear to an Action upon 8 days Warning, and if he is condemned to satisfy the Debt. It should be averred that Mr. Foreman had 8 days Warning, because I, a stranger am to be affected with the Appearance. And tho Mr. Foreman should appear on other Terms, i.e. without 8 days Warning, that Appearance would not charge me a stranger, [or?]
3rd Person, with the Payment of the Debt in Case of Mr. Foremans Condemnation.
Suppose Assumpsit in Consideration that Mr. Foreman at Plaintiff's Request, should relinquish Ad[ministratio]
n and Permit Defendant to have it to do such an Act. It must be averred not only that Mr. Foreman relinquished Ad[ministratio]
n but that he relinquished it at Plaintiffs Request, for the Request is an Act to be done by Plaintiff and if he did it not, there is no Reason that he should have the Recompence.4
Award. If A enters into Bond to perform the award of B and C, and B and C will not make any award, A can not be liable to forfeit his Bond.
Arrest of Judgment. Judgment shall be arrested, after Verdict for Plaintiff in Indebitatus Assumpsit for a Wager or on mutual Promises, for Want of a Consideration. For neither Indebitatus Assumpsit nor
Debt will lie on a Wager or on mutual Promises for Want of a real Consideration.
Judgment was arrested, because the Promise of Defendant appears by the Plaintiffs own shewing to be grounded on a Consideration, which Plaintiff had not Power to perform. The Consideration was that Plaintiff should permit Defendant quietly to enjoy when he had no Right to disturb him.
Bailment. There are 6 Sorts of Bailment, 1. a Depositum. 2. Commodatum. 3 Locatio et conductio. 4. Vadium or Pignus. 5. a Factorage. 6. Mandatum.5
Breach of Assumpsit or Promise, Defendant's assumpsit to deliver to Plaintiff, at or before 8th of Jan. '45 &c. out of a ship into a Barge to be brought by Plaintiff for the Purpose, and Plaintiff avers that he bro't his Barge, and that Defendant non deliberavit on the Eighth of Jany. Adjudged a sufficient Allegation of a Breach. 'Tho it was not alledgd that he did not deliver them before the 8th day which would have been a good Performance.
Leaving of Mill stones damnified, without making satisfaction is a Breach of a Covenant to leave those Mill stones in as good Condition as he found them or to pay the Plaintiff so much as they should be damnified, the Damages to be estimated by A and B, and altho Defendant pleads that A and B have not estimated he will not be excused. For he ought to produce the Estimation himself. If indeed the Estimation ought to be made by such Persons as the Obligee should appoint, and the Obligee had refused to appoint, this would excuse.
The Breach in an Action of Covenant may be assigned as large as the Covenant is; but a precise Breach must be shown in an Action of Debt upon a Bond conditiond to perform Covenants in a certain Judicature specified, Because a Breach is the Forfeiture of the whole Bond. This Distinction between a Bond and a Covenant and the Reasons of it ought to be carefully attended to.
If the Breach is assigned in the Words of the Covenant in an action of Covenant, it is well assigned. But in Debt on a Bond conditiond to perform Covenant a precise Breach must be shewn.
Blood. Whole Blood and half Blood. There has been a great Controversy whether the half Blood shall have a whole share, or but an half share.
In Case of Inheritances, and Descents the whole Blood is preferred, but this say the Advocates for the half Blood is only on Account of a maxim in Law:
Q. Is a Brother or sister of the half Blood, in the same Relation with a Brother or sister of the whole Blood? I think not.
It has been held, that a sister of the half Blood is in equal Degree with a sister of the whole Blood.
“Every Brother and sister I have living” has been adjudgd to include the half Blood as well as the whole.
The statute of Jac. 2. enacts that, if after the Death of the Father any of his Children shall die intestate, without Wife or Children, in the Life Time of the mother every Brother and sister and the Representatives of them, shall have an equal share.6
Now it has been argued that a Brother of the half Blood is a Brother to the Intestate, as well as one of the whole Blood, and therefore should have an equall share.
Commodatum, i.e. cum modo datum. A Contract by which a Thing is granted, without Reward, to another for a certain Use, on Condition that the same Thing shall be returned, after the Use of it, in as good a Condition, as when deliverd.
—In this Contract the same Person continues to be owner, and the same Thing is to be returned; ergo Things that perish in the using, as Wine, Oyl &c. are not commodata.
—The Borrower is holden to the Strictest Diligence and Care, because the Contract is for his Benefit, not for that of the Lender.
—If the Borrower is guilty of the least Neglect, levissima Culpa, he is chargeable; e.g. I lend the Dr.7
my Horse to go to Boston, and he ride him to Weighmouth, or if I lend him for 2 days, and he keeps him 3, if any Accident befalls the Horse, upon the third day, or in the Journey to Weighmouth, the Dr. will be chargeable. For perhaps the Horse would not have been hurt if he had been usd only at such Time and Place as I lent him to be usd.
—But if the Borrower observes the Conditions that the Lender shall impose, and the Horse or Goods are destroyd or damagd by any inevitable Accident as by Light[n]
ing, by Fire, by Robbers &c. he shall not be chargeable. The Lender must bear the Loss 'tho he is to have no Reward for the Use of his Goods. But if the Goods suffer by
the lightest Neglect in the Borrower, as if his servants leave the stable Door open, which gives occasion to the Thief to enter and steal the Horse, he shall be chargeable.
Consideration. If it be alledged, that whereas the Plaintiff vendidisset &c. the Defendant Promised; this imparts a Consideration and Request, for the vendidisset takes in the Concurrence of both Parties.
—An Action may be grounded on a Promise made for a past Consideration, but a previous Request must be alledgd, or else a subsequent Benefit to the Defendant.
—A past Consideration ought to be coupled with a Request.
—In Consideration the Plaintiff had at his own Charge buried Defendants Child, the Defendant promised to pay him his Charges. In Consideration that Plaintiff had served the Defendant and Ux; the Defendant after the Death of the Wife, promised to pay, &c. In Consideration the Plaintiff had married the Daughter of Defendant. In Consideration, that Plaintiff had been Defendants surety Defendant promisd to save Plaintiff harmless; so in Consideration that Plaintiff was Bail for Defendant, he promised to give him a Horse. So in Consideration that S.S. being a Carpenter had well built my House, I promise to give him £5. All these are good Considerations, and it is not necessary in any of these Cases to alledge a Request, because the Benefit which Defendant receives is a good Consideration, and necessarily implies a Request.
—In Consideration, that Plaintiff, at the Special Instance and Request of Defendant, would forbear to arrest Defendants son, till after 23d. of October, the Plaintiff promised to pay, on or before that day. This is a good Consideration, for the Plaintiff might be obliged to fullfill the Consideration by Defendants not paying till the last Instant of the 23d.
—A Woman promises to marry a Man, and the Man in Consideration thereof promises to marry her. This Consideration is good and this Promise is binding, for, Marriage is as much an Advancement to the Man as to the Woman.
—A Release of an Equity of Redemption is a very good Consideration, and the Common Law will take Notice that the Mortgagor has an Equity to be [redeemd?]
in Chancery. A Release, which is the Consideration to maintain an action ought to be set forth Specially when and where it was made.8
Condition praeceedent. The Contract is that one Party shall do an Act, as build a House, Deliver a Horse &c. and that the other Party
for the Doing thereof shall pay Money. In this Case the Performance of the Act is a Condition praeceedent to the Payment of the Money, unless a certain Day is appointed for the Payment, which will happen before the thing can be performed. For in this Case it is plain the Party relies upon his Remedy, and intended not to make Performance a Condition preceedent, and therefore an Action will lie against him, after the Day appointed for the Payment of the Money, before the Thing to be performed is performed.
—When a certain Day appointed for Payment is to happen after the Performance of the Thing to be done by the Contract, Performance is a Condition prasceedent and must be averred in an Action for the Money. Where there is a Condition praecedent to be performd by Plaintiff Performance of that Condition must be set forth, in a Declaration on that Promise which was made on that Condition.9
Covenant lies vs. the Lessee in his Life time, or his Executors after his Death, even after assignment, altho the Lessor had Notice, and accepted Rent of the assignee but not Debt.
—Covenant lies not against Executors by Reason of the general Coven[an]t in Law, by Virtue of the Words Demise and Grant; but It lies vs. Executors on an express Covenant.
—Upon mutual and independent Covenants the Parties may have reciprocal Actions. E.g. It was covenanted by Articles that S. should assign to D. his Interest in a House &c. and that D. should pay to S. £30. Plaintiff assigns for Breach that D. has not paid the £30. Defendant pleads that S. did not assign. Plaintiff demurrs. And adjudged for him, for the Plaintiff may bring his Action before the Assignment of the House, and Defendant has a Remedy after, if the other Party performs not his Part.
Consideration. When one pays Money knowingly on an illegal Consideration, the Party that receives it ought to be punished for his offence, and the Party that pays it is Particeps Criminis.
—No Consideration, or an insufficient Consideration, a good Cause of Motion in Arrest of Judgment.
—If the Consideration, on which a Promise is made, be a Benefit to the Defendant or any Trouble or Prejudice to the Plantiff, it is sufficient.
Covenant. Defendant covenanted to leave Millstones in as good Condition as he found 'em, or to pay the Plaintiff so much as they should be damnified; the Damage to be estimated by A. and B. Plain•
tiff assigns for Breach that Defendant had left the Mill stones damnified, and had not made Satisfaction. Defendant pleads that A. and B hadnt estimated the Damage. Plaintiff demurred and adjudgd for him. For this Covenant is disjunctive, either to leave as good as he found, or to pay the Damages to be estimated by A and B and the latter Part of it viz. the Payment of Damages to be estimated by A and B is for the safety of Defendant, it belongs to him to procure the estimation, or otherwise he shall be liable.
Consideration. Forbearance by the Husband of Executrix to sue for Rent arrear incurred in the Lifetime of Testator, a good Consideration to maintain Assumpsit for the whole Ad[ministratio]n devolves, by the Marriage upon the Husband, and he might have releasd this Debt.
—A Promise not to do a Thing, which the Person who makes the Promise cannot do; is nothing, no Consideration; But the Promise granted on that is merely nudum Pactum.
—A Consideration perfectly past or entirely executed is no Consideration. Dr. and student Page 196.10
—Yet, if the service done or Thing sold, is alledged to be done or sold at the Defendants Special Instance and Request the Consideration doth continue. Croke. Eliz. 282.11
Covenants. In a Declaration on an independent Covenant, the Plaintiff need not set forth, that he tendered to transfer &c., because the stock was to be transferrd upon Payment of the Money; so that if Defendant has by his Agreement made himself the first Agent, he is obliged to pay the Money, before the Plaintiff is to transfer.
Depositum. Is a Contract by which a Man takes Goods into his Custody, to keep for the Use of the Deponent. The Person delivering the Goods is called the Deponent, and the Person receiving them the Depositary.
—The Depositary is answerable for the Goods if he keeps them with gross Negligence, but not if he keeps them as safely, and care•
fully as he keeps his own Goods, tho he neglected to accept them Specially.
—The Depositary has no Reward for receiving and keeping the Goods, and if the Goods are destroyed by Fire, or Stolen by Thieves, or taken away in any other manner without any Gross fault or Negligence in the Depositary, the Deponent must bear the Loss. The Depositary is not chargeable. But if they are stolen or destroyd by any gross Negligence or Mismanagement in the Depositary, such a Negligence as he never keeps his own Goods with, he is answerable because such a distinguishing Negligence is esteemd an Evidence of Fraud.
—A Depositary is the least responsible for Neglect of any of the Bailees. For he is not answerable for Goods that are lost by his Negligence, how gross soever that may be, if he keeps his own Goods with the same Negligence, and does not prove him self a Knave, by keeping the Goods deposited with greater Negligence than he does his own. For qui negligenti Amico, Rem custodiendam tradit, sibi ipsi, et propriae fatuilati, hac debit imputare.
—If a Depositary should promise expressly to redeliver Goods safely, yet he would not be answerable for 'em if stolen or destroyd without his fault. No, not if the Promise was committed to Writing.
Debt is upon the Contract or sale; but Indebitatus Assumpsit is upon the Promise.
If Debt is brought on a Contract for the sale of an Horse for £10; if it turns out that he was sold for more or less, the Plaintiff cannot recover; for it is a Precipe quod reddat, so much Money in particular.12
Deed. Every Mans Deed shall be taken most strongly against himself. Or rather this is the Distinction. Where there are general Words all alone in a Deed of Release, they shall be taken most strongly against the Releasor; But where there is a particular Recital, in a Deed, and then general Words follow, the general Words shall be qualified by the particular Recital.
Debt lies not on a Wager, nor on a mutual Assumpsit, nor against the Acceptor of a Bill of Exchange. But it lies vs. the Drawer for he was really a Debtor by the Receipt of the Money.
—If A lends Money to B, C's Request and upon his Promise to pay it, C cant be charged in an Indebitatus Assumpsit as for a Debt, but must be chargd in a special Assumpsit as being but collaterally bound by his Promise. Otherwise if the Money had been only deliverd
to, or had and receivd by, B at C's Request, for then the Loan would have been to C.
—If I enter Mr. Handcocks13
Warehouse, and say to him deliver such Goods to E.B. a Carter, and I will pay you; This Promise will raise a Debt in me, and E.B. is not to pay for the Goods, nor is he liable for It may be a Gift from me to E.B. and a Debt for them from Me to Mr. Handcock.
—Debt will not lie, nor Indebitatus Assumpsit in Consideration that Plaintiff would sell to D. the Defendant's factor, at Defendant's Instance 200 Hogs to the Use of Defendant. There is a Repugnancy in this Declaration, for Defendant is chargd in Debt for Goods sold to his factor, whereas it should have been sold to him and deliverd to his factor.14
Declaration. General Declarations are often aided by pleading over. Plaintiff in Indebitatus Assumpsit declared that he contracted to release to Defendant his Equity of Redemption of Mortgaged Lands and that Defendant contractd in Consideration thereof to pay £7. And avers generally q[uoa]d Plaintiff performavit omnia, sua pote performanda, but Defendant has not paid the £7. This Declaration would be ill upon Demurrer, for the Plaintiff should have shewn the Time and Place when and where the Release of the Equity of Redemption was executed; Yet by Pleading a Release of all Demands, in Discharge of the seven Pounds, the Defendant admits and aids the Declaration.
—A sufficient Promise i.e. a Promise grounded on a sufficient Consideration must be alledgd in the Declaration.
Delivery. A Delivery in Consideration of being paid the Value, is a sale.
Disjunctive. If a Man makes a Promise or a Covenant in the Disjunctive, he must perform one Part or the other. E.g. A, in Consideration of £100, bound himself in a Bond, with a disjunctive Condition either to make a Lease L. of the Obligee, before such a Day, or to pay him £100. The Obligee died before the day, yet adjudged the Obligor should pay the £100.
Disceit. When a Man pays Money by a meer Disceit, 'tis reasonable he should have his Money again;
Deed. Where there are general Words only in a Deed of Release they shall be taken most strongly against the Releasor as where a Release is made to Dr. Savel15
and me of all Actions, it releases all
several Actions which the Releaser has against us, as well as all joint Actions; so If an Executor releases all Actions, it will extend to all Actions that he has in both Rights, i.e. as Executor, and in his private Capacity too. But where there is a particular Recital in a Deed and then general Words follow, the general Words shall be qualified by the Special Words. E.g. My Father recovered against Dr. Savel a Judgment for £6000 and made Peter16
and me his Executors and died. Dr. Savel made Mrs. Savel17
his Executrix and devisd a Legacy of £5 to me and died; I, by Deed acknowledgd the receipt of the £5 of Mrs. Savell, and thereby released the said Legacy, and all Actions and Demands which I had against Mrs. Savel as Executrix to the Dr. After Argument in B[anco]
, adjudged that nothing was released but the £5.18
Debt. Lies not against a Lessee, after an Assignment of his Term, if the Lessor had Notice, and accepted of the Assignee. But Covenant does.
—If you bring an Action of Debt for Rent, and demand less than is due, you cannot recover, but it is otherwise in Covenant.
—Debt lies where any sum of Money is due, for Money lent, or for Contract, Obligation or other specialty to be paid at a certain Time; and the same not being paid accordingly, Plaintiff shall have this Action for the Recovery of it.
Damages. In an Action of Covenant, all is recoverable in Damages, and those Damages shall be for the real Damages, which the Party can prove that he has actually sustained. Therefore a precise Breach of the Covenant need not be shewn but the Breach may be assignd, in as general Words, as the Covenant is in. Tho in Debt on a Bond or Performance of Covenants, a precise certain determinate Breach as the taking of some particular or the Building of a House with Catalabers19
of a particular Length and Thickness less than that prescribed by Parliament, &c. must be assignd, because not the damages actually sustaind is to be recoverd by this Action but a forfeiture of the whole Bond.
Defendant promises the Husband of Executrix, that in Consideration he will forbear to sue for Rent Arrear in the [Life of?]
Testator till Mich[aelmas]
&c. Defendant will pay it to the
husband. The Husband sues Defendant on this Promise. A Recovery in this Action, would make a new Contract that would amount to a Devastavit. It will not be assetts of the Testators estate; for if Husband dies before Ex[ecutio]
n, the Ex[ecuto]
r or Adm[inistrato]
r of Husband, and not the Wife shall sue Execution and it will be unlike a Recovery by both. The Husband will be chargeable to pay out of his own Estate, as much as he has recoverd. But the old Debt is not extinguished, untill the Money be paid to the Husband.
Demurrer. A General Demurrer will Aid a Plea with an immaterial Traverse tho an immaterial Traverse shewn for Cause upon material Demurrer, would vitiate the Plea.
On Demurrer, a Plea of Tender, when both the Parties meet at Time and Place without Pleading a Refusal, is naught, tho such a Plea is good after Verdict.
Day certain. A Person hired for a Year, can have no Action for his Wages, till the Year is expired; but if the Master covenants to pay the Wages on a certain day within the Year, an Action will lie before the Year is ended.
Distribution of Intestates Estates. The half Blood are in equal Degree, and as near a Kin as the whole Blood.
It has been adjudged several Times, since the statute for the half Blood, by Sir Richard Lloyd,21
that the half Blood shall have but an half share. But Sir Richd. Lloyd alone, decreed in favour of the whole Blood and against the half Blood.
The true Reason, the true Principle of Distribution, is this. The Law is to give, as the Intestate might reasonably be supposed willing to have given, his Estate in Case he had made a Will, and had not been surprised by a sudden Death.
Now, Is not the natural Love of a Person to his Brothers and sisters of the whole Blood, greater than that to Brothers and sisters of the half Blood, and must we not suppose a Mans Inclinations would be to bestow his Estate upon his whole Brothers and sisters in Preference to his half Brothers and sisters? I appeal to Experience, whether Brothers and sisters of the half Blood, have half so strong an affection for each other as Brothers and sisters of the whole Blood. On the Contrary there are very often Grudges and Miffs and Misunderstandings between the second Crop of Children and the first.
Duress. If a Man is induced to make a Deed, by Duress to his Property, he shall avoid it, as much as if it had been made by Duress to his Person. Strange, V[ol]
. 2. Page. 915.22
Evidence. At this day Performance is given in Evidence upon Non Assumpsit.23
Exchange. Neither Debt nor Ind[ebitatus] Ass[umpsit] will lie against the Acceptor of a Bill of Exchange; for his Acceptance is but a collateral Engagement.
—But it lies vs. the Drawer himself, for he was really a Debtor by Receipt of the Money.
—Ind[ebitatus] Ass[umpsit]will lie vs. the Drawer of a Bill of Exchange for so much Money and receiv'd to the Plaintiffs Use. And Plaintiff may give the Note in Evidence.
Inland Bills of Exchange are on the same foundation with foreign Bills,24
and Notes of Hand are on the same foundation with Inland Bills.
Quaere. Is it necessary to set forth, in a Declaration upon a Bill of Exchange vs. the Drawer, that the Drawer had Notice of the Default of Payment by the Endorsor?
Error. Insufficient Consideration to support a Promise is a good Cause of Error of a Judgment for Performance of the Promise.
Factorage, or Carriage. A Delivery of Goods to be carried or otherwise managed, for a Reward to be paid to the Bailee.
—There are 2 sorts of Cases of Delivery and Acceptation to carry or manage for a Reward—either
—1. a Delivery to one that exercises a public Employment as a Common Carrier, common Hayman, Master of a ship &c. The Law charges these Persons thuss intrusted to carry Goods, against all Events but Acts of God and of the King's Enemies, for he is chargeable tho an irresistable Multitude of People should rob him. This Establish•
ment was continued by the Policy of the Law, for the security of all Persons, whose Affairs oblige them to trust these sorts of Persons, who might without such an Establishment, undo all Persons who had Dealings with Them, by Correspondencies with Thieves.
—2. To a Bailiff, Factor, and such like. Altho a Bailie25
is to have a Reward for his Management yet he is only to do the best he can; and if he be robbd it is a good Account.
—It would be unreasonable to charge a Bailie or Factor with a Trust further than the Nature of the Thing puts it in his Power to perform it; tho the Necessity of the Cases of common Carriers, Masters of ships &c. makes such a Charge allowable in those Cases.
—If a Bailie receives his Masters Money and keeps it locked up, with a reasonable Care, he shall not be answerable for it, altho it be stolen.
Indebitatus Assumpsit will not lie upon a Special Agreement, till the Forms of it are performed; but when that is done it raises a Duty, for which a general Ind. Ass. will lie.
Ind. Ass. is an Action upon the Promise. If you bring Ind. Ass. for £10 for a Horse sold, if he was sold for more or Less than £10, yet the Plaintiff shall recover what he was sold for; but if Debt be brought on that Contract; if it turn out more or less then Plaintiff cannot recover; for it is a Precipe quod reddat so much Money in particular.
—An Ind. Ass. will not lie, but for a sum certain.
—An Ind. Ass. does not lie for Rent secundum Ratam. But upon an express Promise for Easement, Ind. Ass. is the proper Action.
—A Permission by Plaintiff for Defendant to kill sheep in his Passage [Pasture?], is not a Lease, which passes any Interest or Property in the Soil. Tis only an Easement, and Ind. Ass. is the proper Action, grounded on an express Promise to pay for such an Easement.
—Ind. Ass. will not lie for a fine imposed on Defendant for not serving the office of sheriff of a City.
—Plea to Ind. Ass. that the Plaintiff and Defendant had accounted and the Plaintiff was found in Arrears 5s., and it was then agreed that one should be quit vs. the other except the 5s. This settlement ought not to be pleaded Specially. It may be given in Evidence on the General Issue.
—Ind. Ass. will not lie for the Repayment of £6 back to Walter by Acton (2 Parishes), on the Reversal of an order of sessions that Walter should pay to Acton £6, which it accordingly paid. Nor will Ind. Ass. lie for Money paid upon a Judgment, after the Reversal of that Judgment for Error.
—Ind. Ass. will lie in no Case, but where Debt lies. It lies not therefore on a Wager, nor upon a mutual assumpsit nor against the Acceptor of a Bill of Exchange; for this Acceptance is but a collateral Engagement. But Ind. Ass. or Debt will lie vs. the Drawer for he was really a Debtor, by the Receipt of the Money.
Ind. Ass. will not lie for an Obligor who has paid against an Obligee who has received Money on an usurious Obligation, to recover back that Money. For the Obligor is Particeps Criminis, and paid the Money voluntarily and Volenti non fit Injuria.
Ind. Ass. for Money had and received to Plaintiffs Use will lie vs. a Defendant, who had been impowerd by Letter of Attorney from an Administrator, and receivd Money due to the Intestate, and paid the same to the Administrator after the said Administration is repealed on the finding of a Will. For such an Administration is void and of Consequence the Defendant acted without Authority, and therefore an implied Contract shall be raised to charge Defendant by Ind. Ass. to the Executor.
—Ind. Ass. will lie for Money lent, or for Money laid out for Defendants Use. But Buying a Note of Defendant, upon his Warranty to make it good, is not laying out the Value of that Note for his Use, nor lending that sum to him.
—Ind. Ass. will well lie for that the Defendant being indebted to Plaintiff in £20 for [ . . . ]
cujusdam E. by Plaintiff at Defendants Request he assumed to pay.
—Ind. Ass. lies only when Debt lies. Debt will not lie on a Wager, on mutual Promises, &c., 'tho a special Assumpsit may.
Joindre. The Wife cannot be joined with her Husband in an Ass[umpsit]
on a Promise made to the Husband, that in Considera•
tion by the Husband would forbear to sue Defendant at his Request, for Money which Defendant owed the Plaintiff's Wife as Executrix to J.S. for arrears of Rent incurrd in the Life Time of J.S., till Mickaelmas following he would pay the Money to Plaintiff for she is neither privy to the Contract nor the Person to whom the Money is to be paid.28
Issue. The Law will always have the Issue a single Point if possible; and for that Reason will never permit a Man to plead the general Issue to a Specialty.
Locatio et Conductio. Letting, and hiring.
Locatio Conductio is a Contract by which the Use of a Thing, or the service of a Person, is gaind for some Time for a certain Reward.
—Locatio as a Bailment is confind to the Letting of Goods and is not extended to the Letting and hiring of services.
—The Hirer is obliged to the Utmost Diligence, such as the most diligent Father of a Family uses, and if he uses that, he shall be discharged. For the most diligent Man cannot always secure his Goods against Lightning, ship wreck, the Incursions of Robbers or Enemies, but if he uses his best Endeavours against them he shall be discharged.
Mandatum. An Acting by Commission. An Authority. A Contract by which an Affair is committed to the Management of another, and by him undertaken to be performed gratis.
—The Commissioner must Act gratis, but if he undertakes to act, he may be compelled, notwithstanding he receives no Consideration, to Act carefully, and is responsible for the Consequences of his Negligence.
—The Confidence reposed in the Commissioner by his Constituent, shall be deemd a sufficient Consideration, to support an Action to compell him to answer the Effects of his Neglect to do what he undertook.
—When one undertakes to carry or manage Goods gratis, and does the Bailor a Damage by his Neglect, he shall be chargeable, for such a Neglect is a Deceit. Let not Friendship be made the Cloak of Malice and Fraud.
—If I make an Executory Contract, without Consideration, to carry a Cask of Brandy, from a Ware house to a ship, next Monday, I cannot be compelled, to carry this Cask, because the agreement was nudum Pactum. But if I not only agree but actually undertake to carry by taking the Cask, upon my Trucks, and then drive my Horses so carelessly that they overturn the Trucks and burst the Cask, I shall be answerable for the Brandy.
—But if the Trucks are overthrown and the Brandy Spilled, by any unavoidable Accident, e.g. if a drunken Person had met the Horses and frighted them, or had pierced the Cask and let out the Brandy, The Mandatum would not be chargeable.
Notes promissory. All Notes signed by any Person promising to pay to another, or order, or Bearer, the Money mentiond in the Note shall be construed to be due and payable to such Person, to whom it is made payable. Yet 'tho due and payable a General Indebitatus Assumpsit will not lie for it vs. the Indorsor, 'tho it may against the Drawer for Want of a Consideration.
Nudum Pactum. A Promise not to do a Thing which the Person that made the Promise cannot do, is nothing, no Consideration; but the Promise made, in Consideration of that Promise is merely nudum Pactum.
A Bill of Exchange is no more than Nudum Pactum. 'Tis only an Evidence of a Promise to pay.29
Nil Debet is no good Plea to an Action of Annuity.
—Nil Debet is no good Plea to an Action of Debt on a Bond, bro't by an Administrator.
—Nil Debet is a good Plea to an Action of Debt brot for Rent reserved.
—Tis a good Plea to an Action of Debt bro't on Penal Statutes.
—Tis a good Plea to Actions of Debt bro't upon awards; or to Account before Auditors.
—The Reason is these are not the Deeds of the Parties.
—Tis no good Plea on a Policy of Insurance.
—Tis no good Plea to an Action on a Bail Bond.
—Nil Debet is a good Plea where the Action is founded on a Collateral Matter, and not comprized in the Deed.
Promises. An Action for a Breach of Promise of Marriage is founded upon mutual Promises.
—It is dangerous to admit Proofs of mutual Promises unless they are committed to Writing.
—In Case of mutual Promises, one Promise is the Consideration of the other. And in these Cases the Plantiff is not obliged to aver Performance of his Part. If there is a positive Agreement that the Plaintiff should release, and that Defendant should pay £7. The Plaintiff might have maintaind an Action before he had made the Release. But if the Promise to pay the Money had been in Consideratione Cujus i.e. of the Release, the Release on the Part of the Plaintiff would have been a Condition preceedent.
—Vid. next Page but one under the Word Payment.31
Mutual Promises must be known by the Words of the Agreement. If I covenant with the Dr. that my father shall convey Land to him, and the Dr. pro Consideratione predicta covenants to pay to my father £160. It is held that the Dr. is obliged to pay the Money, altho my father does not convey. Here is an express Covenant by me that my father shall convey to the Dr. and then pro Consideratione predicta must not be understood in Consideration of the Conveyance, but in Consideration of my Covenant that my father should convey. For as I in Consideration of the Drs. Covenant to pay, without an Actual Payment made my Covenant, so he in Consideration of mine without an Actual Conveyance shall be construed to have made his.
—Plaintiff agreed to make a Release, in Consideratione Cujus the Defendant agreed to pay Plaintiff £7. Holt says, this, Cujus, signifies of the Execution of the Release, not of the Promise.32
But what distinguishes this from the foregoing Case I dont see.
—An Action of Debt, nor of Indebitatus Assumpsit cant be brought on a mutual Assumpsit.
—Suppose I was indebted to Mr. Foreman, and I should go to Mr. Thatcher33
and intreat him to pay Mr. Foreman and should promise Mr. Thatcher to pay him again, and thereupon Thatcher should
promise to pay the Debt to Mr. Foreman and afterwards refuse or neglect it: I may have an Action vs. Mr. Thatcher on the Promise because of my mutual Promise to him he may be indemnified.
Performance. Performance of the Act or Thing to be done is a Condition preceedent to the Payment of the Money to be paid, when the Agreement is that one shall do such an Act, and that for the doing thereof the other shall pay, unless a day be appointed for the Payment of the Money and that day is to be before the Thing to be done, can be performed. If Performance of a Covenant is rendered impossible by the Act of the Obligee, the Obligor is excused.
Pawn or Pledge. Redemption is incident to the Nature of a Pledge.
The Pawn is a security to the Pawnee, that he shall be repaid his Debt, and therefore he has a Special Property in the Thing pawned.
If Things that wear or suffer by Use as Cloaths &c. are pawnd the Pawnee must not use them, but if Things are pawnd that will be nothing the worse for Use as Jewells to a Lady &c. she may use them. But she must use them at her own Risque. For if she wears them abroad, and is there robbed of them, she will be answerable for them, whereas if she keeps 'em locked in her Cabinett, if her Cabinet should be broke open and the Jewells stolen, she would be excused.
A Pawn is in Nature of a Deposit, and as such is not liable to be usd.
—But if a Horse or Cow or any other Thing whose Maintenance is chargeable to the Pawnee be pawned, then the Pawnee may milk the Cow, or use the Horse in a reasonable Manner, in Recompence of his meat.
—The Creditor who takes a Pawn is bound to restore it upon the Payment of his Debt; i.e. if the Pawn is safe, but if the Creditor has used an ordinary Care to preserve the Pawn, but it has been not withstanding stolen or destroyd, he shall not loose his Debt.
—The Law requires nothing of the Pawnee, but an ordinary Care for Restoring the Goods.
—If the Pawnee detain the Goods pawnd, after a Tender of the Money for which they were pawnd, he is a Wrong Doer. And should be answerable for them, if lost.
Payment. An agreement was made that Defendant should pay £20 in 6 months, the Plaintiff transferring stock, which Plaintiff agreed to do, Defendant paying the £20. These are mutual Promises. Yet the Payment of the Defendant is a Condition praecedent to the Transfer of the Plantiff, and the Transfer of the Plantiff is a Condition praecedent to the Payment of Defendant, so that these are mutual Promises
and Conditions precedent too. This is to be understood, unless a Day certain be appointed either for Performance or Payment.
Pro. The Word Pro, (in Pro Consideratione inde) makes Condition praeceedent in all executory Agreements, unless there is a certain day appointed for the Performance. But, yet the Word Pro does not always make a Condition praeceedent so that the Plaintiff is not intituled to an Action without averring Performance on his Part, for sometimes the Word Pro makes the Covenants mutual e.g. The Plaintiff is to transfer pro the Money, which the Defendant is to pay pro the Transfer.
Request. An assumpsit for Work and Labour done as laid in this Case viz. quod performasset et per ferisset cannot imply a Request, because it might be done without the Knowledge or Privity of the Defendant: and such an Action will not lie, unless it be expressly averrd to have been done ex Requisitione of the Defendant.
—Work may be done for a Man without his Request or Privity; if a Man will enter on my Land, pull down my House, and build up a new one without my Consent and Approbation, the Law [ . . . ] the House; and the Plaintiff has no Remedy for the Work and Labour done; for
—An Action will not lie unless the Consideration is grounded on a preceedent Request or a subsequent Benefit and approbation.
—A Benefit by Implication carries a Request along with it. Hays vs. Warren.34
—A Delivery and Acceptance necessarily imports a Request and Privity in Defendant.
—A Man cannot be liable for Work and Labour done for a 3d. Person, unless it was done at his Request.
Repugnancies. Indebitatus Assumpsit for Money had and receivd by the Defendant for the Plantiff, ad usum of Defendant. Judgment shall not be arrested; those insensible, repugnant Words, “Ad Usum of Defendant” shall be rejected.
—Indebitatus Assumpsit in Consideration that Plaintiff would sell to D, the Defendants factor, at the Instance of the Defendant, 200 Hoggs to the use of Defendant. Debt nor Indebitatus Assumpsit will lie, for if the Defendant only promised, collaterally as a security a
Warranty for the Payment of his factor, a Special Action of the Case not Indebitatus Assumpsit nor Debt is the proper Action, but if he promised as the Principal Debtor he ought to have been chargd as the Vendee and the Goods should have been said to be deliverd not sold to his factor. So that here is a Repugnancy in this Declaration.
Rent. A.B. covenanted to pay Rent to B.C. Now if B.C. should enter by Virtue of a Power reservd in this Covenant, or if he enterd as a meer Trespasser, this is no suspension of the Rent.
Stranger. 3rd. Person &c. Suppose I should be bound in a Recognisance, that Mr. Foreman should appear to an Action upon 8 Days Warning and if he should be condemnd that I would Satisfy the Debt. Here as a stranger is to be affected by the Appearance there ought to be precisely such an Appearance sett forth, as was mentioned in the Condition of the Recognisance. As if I am bound in a Bond to Mr. Foreman to pay Mr. Foreman Money; Mr. Foreman may accept a Horse instead of it: But If I am bound to Mr. Foreman to pay Mr. Otis, Paine, &c. money; Mr. Otis cannot accept a Horse.
—If I promise Mr. Foreman to pay Money to a Stranger as Mr. Paine, that stranger Mr. Paine may have an Action against me for this Money. For here tho Mr. Paine is not privy, is not a Party to the Contract, yet the Payment is to be made to him.
—Suppose I owed Mr. Foreman, and should go to a 3rd. Person Mr. Kent and intreat him to pay Mr. Foreman for me, and should promise to pay him again, and thereupon Mr. Kent should promise to pay Mr. Foreman, and afterwards should neglect or refuse it; I may have an Action vs. Mr. Kent on the Promise, because of the mutual Promise from me to him, whereby he may be indemnified, and an Action will lie for Mr. Kent vs. me, even without averring Payment to Mr. Foreman. And it seems also that Mr. Foreman, being the Person for whose Benefit the Promise was made, may have an Action vs. Mr. Kent, on his Promise to me.
Tender. Defendant, in Consideration of £20 assumed to deliver to the Plantiff, at or before the Eighth day of Jany. 45 Qu[arte]rs of oat meal out of a ship into a Barge to be brought there by Plaintiff for said Purpose. The Defendant cant make a Tender before the last day to oblige the Plaintiff to accept them, altho he had his Election to deliver before the 8th day.
Trespass. In Trespass or Trover, for 6 sieves of diverse sorts, the Plaintiff must declare how many of each sort. But in Assumpsit we must declare as the Agreement was.
Tender. When both Parties, (Plaintiff and Defendant) meet at Time and Place, he that pleads a Tender, must also plead a Refusal; otherwise such a Plea is naught on Demurrer.
—He that pleads a Tender at the Time and Place and no one there to receive, must shew at what Time of the Day, he was there, and how long he staid.
—The last of the Day is the Time the Law appoints for a Tender but it must be time enough before sun set to [ . . . ] at the Matter.
Trover. An Administrator recovered, in an Action of Trover for Goods. And after Judgment, but before Execution The Administration was repealed. Upon this the Defendant brought Audita Querela, and adjudged that it lay.
Traverse. Where a Traverse is immaterial the Adverse Party is not excluded from an Answer; but may reply and traverse the material Part of the Plea.
Undertaking. There is a Difference between a Conditional and an absolute Undertaking: as if A promise to pay B such a sum, if C does not. There A is but a Security for C, but if A promise that C will pay such a sum, A is the Principal Debtor; for the Act done was upon his Credit, and no Way upon C.
Vadium. A Pawn. A Contract, by which a Thing is given by the Debtor to the Creditor, for security of his Debt, on Condition, that, when the Debt is paid the same Thing, in Specie should be returned.
—The Pawnee has a Special Property in the Goods. For the Pawn is a security to the Pawnee that he shall be repaid his Debt, and to compell the Pawner to pay him.
—If Cloaths &c. or any other Thing that will be the worse for Using, be pawned, the Pawnee may not use them. But if Jewells or any other Thing that will not be the worse for Use, be pawned, the Pawnee may use it but then he must use them at his own Hazard. For
—If a Lady shall lock a sett of Jewels, that have been pawnd to her, in her Cabinet, Altho her Cabinet should be broke open, and the Jewells stolen, she would be excused, but if she wears them abroad, and is there robbed of them, She will be answerable for them.
—A Pawn is in Nature of a Deposit, and as such is not liable to be used.
But if a Horse, or Cow, or any other Creature or Thing whose sustenance is chargeable, be pawned, The Pawnee may ride the Horse, or Milk the Cow in a reasonable Manner, in Reward of his Keeping.
—If a Creditor takes a Pawn he is obliged to restore it, upon Payment of the Debt.
—The Law requires Nothing extraordinary of the Pawnee, but only that he shall use an ordinary Care for restoring the Goods.
—It is sufficient if the Pawnee use true Diligence, and not withstanding the Loss, he shall resort to the Fawner for his Debt, if he has usd such Diligence.
—If the Money for which Goods were pawned, were tendered to the Pawnee, before they are lost, then the Pawnee shall be answerable for them; because the Pawnee by detaining them, after the Tender of the Money, is a Wrong Doer; it is a wrongful Detainer of the Goods, and the Special Property of the Pawnee is determined, and a Man that keeps Goods by Wrong must be answerable for them at all Events: for the Detaining of them is the Reason of the Loss.
—Goods found, are governd by the same legal Distinctions with Pawns.
Verdict. Defendant assumed to pay as much as his son should be indebted to Plaintiff. Ballance of the Account to be stated between the Defendant's son, and the Plantiff. And the Plaintiff averred that an Account was stated of all Debts, owing by the Defendants son to the Plantiff, and the Defendants son was found on that Account to be indebted £20. Judgment shall not be arrested, because nothing is averred to be due and so allowd for, from the Defendants son to the Plaintiff, because it shall not be intended after Verdict that any Thing was due, from Plaintiff to Defendants son.
Warranty. If Upon a sale of Goods from a Merchant A.B. to my Friend C.D., I only make a collateral Promise as a surety or Warrantee to pay in Case my friend does not, I cant be chargd in Indebitatus Assumpsit but only in a Special Action of the Case.