First, it was agreed, that a mere voluntary courtesy will not have a consideration to uphold an assumpsit. But if that courtesy were moved by a suit or request of the party that gives the assumpsit, it will bind; for the promise, though it follows, yet it is not naked, but couples itself with the suit before, and the merits of the party procured by that suit, which is the difference. Pasch. 10 Eliz., Dyer, 272. Hunt and Bates. See Oneley's case, 19 Eliz., Dyer, 355. Then, as to the main point, it is first clear, that in this case upon the issue non assumpsit, all these points were to be proved by the plaintiff: 1. That the defendant had committed the felony, prout, &c. 2. Then that he requested the plaintiff's endeavour, prout, &c. 3. That thereupon the plaintiff made his proof, prout, &c. 4. That thereupon the defendant made his promise, prout, &c. Difference upon a promise past and to come upon a consi For wheresoever I build my promise upon a thing done at my request, the execution of the act must pursue the request, for it is like a case of commission for this purpose. So then the issue found ut supra is a proof that he did his endeavour according to the request, for else the issue could not have been found: for that is the difference between a promise upon a consideration executed and executory, that in the executed you cannot traverse the consideration by itself, because it is passed and incorporated and coupled with the promiset. And if it were not indeed † See R. H. then acted, it is nudum pactum. deration. 1834, Passenger v. Brookes, 587. But if it be executory, as, in consideration that you shall Bing. N. C. serve me a year, I will give you ten pounds, here you cannot bring your action, till the service performed. But if it were a promise on either side executory, it needs not to aver performance, for it is the counter-promise, and not the performance, that makes the consideration; yet it is a promise before, though not binding, and in the action you shall lay the promise as it was, and make special averment of the service done after. See Notes to Pordage v. Cole, I Wms. Saund. 320, and to Peters v. Opie, 2 Wms. Saund. + See the notes to Bristow v. Wright, post. Now if the service were not done, and yet the promise made, prout, &c., the defendant must not traverse the promise, but he must traverse the performance of the service, because they are distinct in fact, though they must concur to the bearing of the action. *Then also note here, that it was neither required, nor promised to obtain the pardon, but to do his endeavour to obtain it, the one was his end, and the other his office. Now then, he hath laid expressly, in general, that he did his endeavour to obtain it, viz. in equitando, &c., to obtain. Now then, clearly, the substance of this plea is general, for that answers directly the request, the special assigned is but to inform the court; and therefore, clearly, if, upon the trial, he could have proved no riding nor journeying; yet any other effectual endeavour according to the request would have served+: and therefore, if the consideration had been, that he should endeavour in the future, so that he must have laid his endeavour expressly, and had done it as he doth here, and the defendant had not denied the promise, but the endeavour, he must have traversed the endeavour in the general, not in the riding, &c. in the special; which proves clearly, that is not the substance, and that the other endeavour would serve. This makes it clear, that though particulars ought to be set forth to the court, and those sufficient, which were not done, which might be cause of demurrer; yet being but matter of form, and the substance in the general, which is herein the issue and verdict, it were cured by the verdict; but the special is also well enough; for all is laid down for the obtaining of the pardon which is within the request; and therefore, suppose he had ridden to that purpose, and Brathwait had died, or himself, + So to a plea before he could do any thing else, or that another had of nul agard in obtained the pardon before, or the like, yet the promise had an action on a bond to perform holden. an award, the replication must set out the award in order that the court may judge of its sufficiency. See 1 Wms. Saunders, 327, n. d. And observe that case, 22 E. 4. 40. Condition of an obligation, to show a sufficient discharge of an annuity, you must plead the certainty of the discharge to the court †. The reason whereof, given by Brion and Choke, is, that the plea there contains two parts, one a trial per pais, scil. the writing of the discharge, the other by the court, scil. the sufficiency and validity of it, which the jury could not try, for they agree, that if the condition had been to build a house agreeable to the state of the obligee, because it was a case all proper for the country to try, it might have been pleaded generally and then it was a demurrer, not an issue, as is here. * WHENEVER the consideration of a promise is executory, there must ex necessitate rei have been a request on the part of the person promising. For if A. promise to remunerate B., in consideration that B. will perform something specified, that amounts to a request to B. to perform the act for which he is to be remunerated. See King v. Sears, 2 C. M. & R. 53. 5 Tyrwh. 587. The only difficulty that can arise in such cases is on the question which sometimes occurs whether the consideration move from the plaintiff: as, for instance, if A. in consideration of something to be done by B., were to promise something to C., in this case, C. being a stranger to the consideration, unless he in some way had intervened in the agreement between A. & B., could not sustain an action on the promise. See Price v. Easton, 4 B. & Adol. 433; Osborne v. Rogers, 1 Wms. Saund. 264. See Thomas v. Shillibeer, 1 Mee. & Welsb. 126. But if the plaintiff have intervened in the agreement, that is sufficient. Tipper v. Bicknell, 3 Bingh. N. C. 710; Webb v. Rhodes, ib. 734. And in Lilly v. Hays, 5 A. & E. 549, A. transmitted money to B. and afterwards informed him that it was for C.: B. having assented to this, and C. having been informed of it, it was held that C. might maintain assumpsit for money had and received against B. See also Dutchman v. Tooth, 5 Bing. N.C.577. Where the consideration is executed, unless there have been an antecedent request, no action is maintainable upon the promise; for a request must be laid in the declaration, and proved, if put in issue, at the trial. Child v. Morley, 8 T. R. 610; Stokes v. Lewis, 1 T. R. 20; Naish v. Tatlock, 2 H. Bl. 319; Hayes v. Warren, 2 Str. 933; Richardson v. Hall, 1 B. & B. 50; Durnford v. Messiter, 5 M. & S. 446. See Reg. Gen. Hil. 1832, pl. 8. For a mere voluntary courtesy is not sufficient to support a subsequent promise; but when there was previous request, the courtesy was not merely voluntary, nor is the promise nudum pactum, but couples itself with, and relates back to, the previous request, and the merits of the party which were procured by that request, and is therefore on a good consideration. See Pawle v. Gunn, 4 Bing. N. C. 448. Such a request may be either express or implied. If it have not been made in express terms, it will be implied under the following circumstances:-First, Where the consideration consists in the plaintiffs having been compelled to do that to which the defendant was legally compellable. Jeffreys v. Gurr, 2 B. & Ad. 833; Pownall v. Ferrand, 6 B. & C. 439; Exall v. Partridge, 8 T. R. 308; Toussaint v. Martinnant, 2 T. R. 100; Grissel v. Robinson, 3 Bingh. N. C. 13. Secondly, Where the defendant has adopted and enjoyed the benefit of the consideration, for in that case the maxim applies omnis ratihibitio retrotrahitur et mandato æquiparatur. Vide Pawle v. Gunn, 4 Bingh. N. C. 448. Thirdly, Where the plaintiff voluntarily does that whereunto the defendant was legally compellable, and the defendant afterwards, in consideration thereof, expressly promises. Wennall v. Adney, 3 B. & P. 250, in notis; Wing v. Mill, 1 B. & A. 104; S. N. P. 8 ed. p. 57, n. 11. Paynter v. Williams, 1 C. & M. 818. But it must be observed that there is this distinction between this and the two former cases, viz. that in each of the two former cases the law will imply the promise as well as the request, whereas in this and the following case the promise is not implied, and the request is only then implied when there has been an express promise. Atkins v. Banwell, 2 East, 505. Fourthly, In certain cases, where the plaintiff voluntarily does that to which the defendant is morally, though not legally, compellable, and the defendant afterwards, in consideration thereof, expressly promises. See Lee v. Muggeridge, 5 Taunt. 36; Watson v. Turner, B. N. P. 129, 147, 281. Trueman v. Fenton, Cowp. 544. Atkins v. Banwell, 2 East, 505. But every moral obligation is not perhaps sufficient for this purpose. See per Lord Tenterden, C. J., in Littlefield v. Shee, 2 B. & Adol. 811. Whether a father impliedly undertakes to repay any person supporting his child whom he deserts. Dubitatur, Urmston v. Newcoman, 4 A. & Ell. 899. Upon the question what will amount to evidence of a request where it is necessary to prove one, see Alexander v. Vane, 1 Mee. & Welsb. 513. There A. & B. went to C.'s shop; A. ordered goods, and B. said in A.'s presence that he would pay for them if A. did not. This was held evidence of a request from A. to B. to pay for them in case of his own default. One of the most singular, perhaps the most singular case determined on the ground of nudum pactum, is Hopkins v. Logan, 5 M. & W. 247, where it was held that the law would imply a promise to Knight v. Hughes, 1 M. & M. 247 ; pay it in præsenti. It is perhaps upon the principle that a gift while executory is nudum pactum, and therefore incapable of being enforced, that a parol gift of chattels is held to pass no property to the donee without delivery. Irons v. Smallpiece, 5 B. & A. It has been above stated that one of the cases in which an express request is unnecessary, and in which a promise will be implied, is that in which the plaintiff has been compelled to do that to which the defendant was legally compellable. On this principle depends the right of a surety who has been damnified to recover an indemnity from his principal. Toussaint v. Martinnant, 2 T. R. 100; Fisher v. Fellows, 5 Esp. 171. Thus, the indorser of a bill who has been sued by the holder, and has paid part of the amount, being a surety for the acceptor, may recover it back as money paid to his use and at his request. Pownall v. Ferrand, 6 B. & C. 439. But then the surety must have been compelled, i. e. he must have been under a reasonable obligation and necessity, to pay what he seeks to recover from his principal; for if he improperly defend an action and incur costs, there will be no implied duty on the part of his principal to reimburse him those, unless the action was defended at the principal's request. Roach v. Thompson, 1 M. & M. 487. See 4 C. & P. 194; Gillett v. Rippon, 1 M. & M. 406; . Smith v. Compton, 3 B. & Ad. 407. But if he make a reasonable and prudent compromise, he will be justified in doing so. Smith v. Compton. However, it is always advisable for the surety to let his principal know when he is threatened, and request directions from him; for the rule * laid down by the King's Bench in Smith v. Compton is, that "the effect of want of notice (to the principal), is to let in the party who is called upon for an indemnity, to show that the plaintiff has no claim in respect of the alleged loss, or not to the amount alleged; that he made an improvident bargain, and that the defendant might have obtained better terms if an opportunity had been given him. The effect of notice to an indemnifying party is stated by Buller J., in Duffield v. Scott, 3 T. R. 374. The purpose of giving notice is not in order to give a ground of action; but if a demand. be made which the party indemnifying is bound to pay, and notice be given to him, and he refuse to defend the action, in consequence of which the person indemnified is obliged to pay the demand, that is equivalent to a judgment, and estops the other party from saying that the defendant in the first action was not bound to pay the money." On the same ground as the liability of a principal to reimburse his surety, depends the right of one surety or joint con |