CHAP. IV.

OF THE ACTION OF ASSUMPSIT.

I. Of the Action of Assumpsit, and of the Agreement for the Non-performance of which this Action may

be maintained.

II. Of the general Indebitatus Assumpsit.

III. Of the Declaration.

IV. Of the Pleadings,

1. Of the General Issue, and what may be given in Evidence under it.

2. Accord and Satisfaction.

I. Of the Action of Assumpsit, and of the Agreement for the Non-performance of which this Action may be maintained.

THE action of assumpsit is an action of tresspass on the case, whereby a compensation, in damages, may be recovered for an injury sustained by the non-performance of a parol agreement. Agreements are distinguished, into agreements by specialty and agreements by parol. The law of England does not recognize any other distinction. If agreements are merely written, and not specialties, they are parol agree

ments. The action of assumpsit is confined to agreements by parol, the action of covenant or debt being the proper remedy for the non-performance of agreements by specialty. The essential parts of every parol agreement are, the promise or undertaking of one party, and the consideration on which such promise or undertaking is founded, proceeding from the other party. Sometimes the promise is expressed by the party, and sometimes it is raised by implication of law. In the former case it is termed an express, in the latter, an implied promise. In parol agreements, the law will not imply a consideration; consequently, in actions of assumpsit, a consideration must be stated and proved (1).

Of the Consideration.-Every promise, for the non-performance of which an action of assumpsit may be maintained, must be founded on a sufficient consideration (2), that is, a consideration, either of benefit to the defendant, or of benefit to a stranger, or of damage, or of loss, sustained by the plaintiff, at the request of the defendant; and herein the

a Per Skinner, C. B. delivering the
opinion of the judges in Rann v.
Hughes, D. P. 14 May, 1778, 7 T. R.
351. n.

b Bennus v. Guyldley, Cro. Jac. 505.
c Per Buller, J. in Nerot v. Wallace, 3

T. R. 24. and Cooke v. Oxley, 3 T. R. 653.

d Per Gawdy and Fenner, Js. in Greenleaf v. Barker, Cro. Eliz. 194.

e Per Ellenborough, C. J. in Bunn v. Guy, 4 East's R. 194.

(1) Bills of exchange and promissory notes form an exception to this rule.

(2) It is worthy of observation that Sir William Blackstone, in that part of the third volume of his Commentaries, wherein he treats of the action of assumpsit, has not either named, described, or even alluded to the consideration requisite to support an assumpsit; and, what is more remarkable, the example put by him in order to illustrate the nature of the action is, in the terms in which it is there stated, a case of nudum pactum: "If a builder promises, undertakes, or assumes to Caius, that he will build and cover his house within a time limited, and fails to do it, Caius has an action on the case against the builder for this breach of his express promise, undertaking, or assumpsit." See 1 Roll. Abr. 9. 1. 41. Doct. and Stud. Dial. 2. ch. 24. and Elsee v. Gatward, 5 T. R. 143. that an action will not lie for a mere nonfeasance, unless the promise is founded on a consideration. This remark ought not, neither was it intended, to derogate from the merit of a justly celebrated writer, who for comprehensive design, luminous arrangement, and elegance of diction, is unrivalled. It is possible, that the learned commentator might have selected his example from Bro.

law of England adopts and recognizes the rule of the civil law, ex nudo pacto non oritur actio.

Any act of the plaintiff, from which the defendant derives a benefit or advantage, or any labour, detriment, or inconvenience sustained by the plaintiff, however small the benefit or inconvenience may be, is a sufficient consideration, if such act is performed, or such inconvenience suffered by the plaintiff, with the consent, either express or implied, of the defendant, or in the language of pleading, "at the special instance and request of the defendant." It is however, clearly established, that the consideration must be of some value, in contemplation of law (3); for where A. in consideration that B. would make an estate at will to him, as his counsel should devise, promised, &c. it was holden a void promise, for want of a sufficient consideration, because B. might immediately determine his will*.

So where the testator had committed to the care of the defendant his children, and the disposition of his goods, during their minority, for their education, and thereupon the defendant promised the testator to procure the assurance of certain lands to one of the testator's children, the consideration was holden insufficient; for the law would not intend that the defendant had made any private gain to him

f 17 E. 4. 4 b. Plowd. 305. a. 308. b. g Williamson v. Clements, 1 Taunt. 523.

h Sturlyn v. Albany, Cro. Eliz. 67. March v. Culpepper, Cro. Car. 70. See 4 Taunt. 611, and post. p. 49.

i Stokes v. Lewis, 1 T. R. 21. Child v. Morley, 8 T. R. 610.

1

k 1 Roll. Abr. 23. pl. 29.

Smith v. Smith, 3 Leon. 88.

Abr. tit. Action sur le Case, 72, without adverting to the omission of the consideration. See the remarks of Mr. Coleridge in his excellent edition of the Commentaries.

(3) The case of Wheatley v. Law, Cro. Jac. 667. (recognized by Holt, C. J. in Coggs v. Bernard, Lord Raym. 920.) in which it was adjudged, that the acceptance of a sum of money by the defendant from the plaintiff, for the purpose of paying it over to a creditor of the plaintiff, was a sufficient consideration to support a promise by the defendant to perform the trust, may appear an exception to this rule. The exception, however, is only apparent: for, from the report of the same case, in Palm. 281. under the name of Loe's case, it is evident, that the Chief Justice considered the detention of the money as a damage to the plaintiff. Whether the application of the rule was just in that case, is another question. It is clear, however, that the rule itself was recognized by the court.

self, but that he had disposed of the goods for the benefit of the children, according to the trust reposed in him.

The mere performance of an act, which the party was by law bound to perform, is not a sufficient consideration. Hence a promise made by the master, when a ship was in distress, to pay an extra sum to a mariner as an inducement to extraordinary exertion on his part, has been holden to be void because a seaman is bound to exert himself to the utmost in the service of the ship". So where, in the course of a voyage, some of the seamen deserted, and the captain, not being able to find others to supply their place, promised to divide the wages, which would have become due to them, among the remainder of the crew, it was-holden", that this promise was void for want of a consideration; for the desertion of a part of the crew was to be considered as an emergency of the voyage as much as their death, and the remainder of the crew were bound, by the terms of their original contract, to exert themselves to the utmost to bring the ship in safety to her destined port.

Natural affection, although sufficient to raise an use, is not a sufficient consideration, whereupon an assumpsit may be founded° (4).

Where A is indebted to B. in one sum, and B. indebted to C. in a less sum, if B. promises A. to discharge him of so much of his debt, as amounts to B.'s debt to C., this will be a good consideration for a promise by A. to pay C. the debt due to him from BP.

The defendant being indebted to the testator in a sum of

m Harris v. Watson, Peake, N. P. C. o Agreed by the court, in Bret v. J. S. 72. Lord Kenyon, C. J. and wife, Cro. Eliz. 755. n Stilk v. Myrick, 2 Camp. N. P. C. p Gouldsborough, 49. 317.

(4) A release of an equity of redemption is a good consideration, and the common law will take notice, that the mortgagor has an equity to be relieved in Chancery. Thorpe v. Thorpe, Lord Raym. 663. But see Preston v. Christmas, 2 Wils. 87. where it was holden, that the release of an equity of redemption was not of any value in contemplation of law. In Wells v. Wells, 1 Lev. 273, a release of an equitable interest was held a good consideration.

How far a moral obligation is a sufficient consideration, and what must be understood by that term, see an elaborate note by the learned reporters of the cases adjudged in the Court of Common Pleas, in Wennall v. Adney, 3 Bos. and Pul. 249, and post. p. 57, n. (11).

money upon simple contract, the plaintiff, his executor, agreed to take a less sum, payable by instalments, in lieu of the original debt, in consideration whereof, the defendant promised the executor to pay him the lesser sum. On assumpsit brought, an exception was taken, in arrest of judgment, that the consideration was insufficient, because it did not appear that the plaintiff had discharged the defendant of the original debt. But the objection was over-ruled, because the original debt being due to the plaintiff, as executor, the action to recover that must have been in the detinet; but by the agreement on the part of the plaintiff to take a less sum, and the promise by the defendant to pay that sum, it became the proper debt of the plaintiff, and the action for it maintainable in his own name, without being named executor. And (by Yelverton, Justice,) although the less sum is not any satisfaction of the greater, because they are both of one nature, yet in respect that the nature of the action was changed, it was, therefore, a good consideration.

In order to facilitate the making of an agreement, for which there was sufficient consideration between the plaintiff and a third person, the defendant, who received no benefit to himself by the agreement, became party thereto; it was holden, that as the agreement was such as the plaintiff would not have made, unless the defendant had acceded, there was a sufficient consideration for the defendant's promise'.

Forbearance of Suit-in what Cases a sufficient Consideration. If a creditor, at the request of his debtor, forbear to sue him for a certain time, that is a sufficient consideration for a new promise by the debtor for the non performance of which an action of assumpsit may be maintained. So if a creditor at the request of J. S. forbear to sue his debtor for a certain times, that is a sufficient consideration to support a promise by J. S. to pay the debt. But by stat. of Frauds, 29 Car. 2. c. 3. s. 4. this agreement must be in writing'.

Forbearance to sue an executor (having assets) for a certain time upon a simple contract debt of his testator, is a good consideration to found a promise by the executor to pay the debt. So forbearance to sue an executor for a reasonable time for the debt of his testator, although the executor have not assets; but the agreement by the executor

q Goring v. Goring, Yelv. 10, 11.

r Bailey v. Croft, 4 Taunt, 611.

s 1 Roll. Abr. 27. pl. 49.

u Fish v. Richardson, Cro. Jac. 47. and Yelv. 55. Confirmed in Bond v. Payne, Cro. Jac. 273.

t King v. Wilson, per Raym. C. J. x Johnson v. Whitchcott, 1 Rol. Abr.