V. Of the Costs.

By stat. 3 & 4 Vic. c. 24, (3 July, 1840,) reciting the passing of the stat. 43 Eliz. c. 6, and 22 & 23 Car. II. c. 9, and that the evil arising from frivolous and vexatious suits still prevails and increases, and that it is expedient to make further provisions for the prevention thereof, it is enacted, (by sect. 1,) "That the said recited act of the forty-third of Elizabeth, so far as it relates to costs in actions of trespass, or trespass on the case, and so much of the twenty-second and twenty-third of Charles the Second as relates to costs in personal actions, be repealed." And by sect. 2, "If the plaintiff in any action of trespass, or of trespass on the case, brought or to be brought in any of her Majesty's courts at Westminster, or in the Court of Common Pleas at Lancaster, or Durham, shall recover by verdict less damages than forty shillings, such plaintiff shall not be entitled to recover in respect of such verdict, any costs, whether it shall be given upon any issue tried, or judgment shall have passed by default, unless the judge or presiding officer before whom such verdict shall be obtained shall immediately afterwards certify on the back of the record, or on the writ of trial or writ of inquiry, that the action was really brought to try a right besides the mere right to recover damages for the trespass or grievance for which the action shall have been brought, or that the trespass or grievance in respect of which the action was brought was wilful and malicious." By sect. 3, it is provided, "That nothing herein contained shall extend to deprive any plaintiffs of costs in any action brought for a trespass over any lands, commons, wastes, closes, woods, plantations, or enclosures, or for entering into any dwellings, outbuildings, or premises in respect of which any notice not to trespass thereon or therein shall have been previously served, by or on behalf of the owner or occupier of the land trespassed over, upon or left at the last reputed or known place of abode of the defendant or defendants in such action or actions."

The judge has the power (u) of certifying in all cases where it appears from the declaration that the action may have been brought to try a right, although no question of right may be raised in the subsequent pleadings. If the certificate is informally drawn up at the trial, it may be amended (x) afterwards, and even after a rule nisi has been granted for setting it aside.

By stat. 58 Geo. III. c. 30, reciting that it is desirable to prevent, as much as may be, frivolous and vexatious actions of assault and battery, and for slanderous words, in inferior courts, it is

enacted, (sect. 1,) that in all actions or suits of trespass for assault and battery commenced in any court having, or which by his Majesty's writ of justicies may have, jurisdiction to hold pleas to the amount of forty shillings, (other than his Majesty's courts at Westminster, the Court of Common Pleas at Lancaster, or the Court of Pleas at Durham,) if damages, upon trial of issue, or inquiry, are under forty shillings, the plaintiff shall recover only so much costs as damages. And by sect. 2, in courts not holding pleas to the amount of forty shillings, if damages under thirty shillings, the same law.

By stat. 8 & 9 Will. III. c. 11, s. 1, "Where several persons are made defendants to any action or plaint of trespass, assault, or false imprisonment, and any one or more of them shall be upon the trial thereof acquitted by verdict, every person so acquitted shall have his costs in like manner as if a verdict had been given against the plaintiff and acquitted all the defendants, unless the judge, before whom such cause shall be tried, shall, immediately after the trial thereof in open court, certify upon the record, under his hand, that there was a reasonable cause for making such person a defendant to such action" (y).

In assault and battery against several defendants, one let judgment go by default, and the others pleaded not guilty (z). On the trial, the jury gave damages against him who had suffered judgment by default, and found the other defendants not guilty. Wilmot, J., being desired to certify that there was a reasonable cause to make the others defendants, said, he thought the stat. 8 & 9 Will. III. c. 11, s. 1, did not extend to this case, but only to cases where some of the defendants are convicted by verdict, and others acquitted. In this case it is as if they had severed in pleading, and as if the action was against the others only; and on these grounds he refused to certify.

By stat. 3 & 4 Will. IV. c. 42, s. 32, "Where several persons shall be made defendants in any personal action, and any one or more of them shall have a nolle prosequi entered as to him or them, or upon the trial shall have a verdict pass for him or them, every such person shall have judgment for and recover his reasonable costs, unless, in the case of a trial, the judge before whom the cause shall be tried, shall certify upon the record under his hand, that there was a reasonable cause for making such person a defendant in such action."

(y) See Furneaux v. Fotherby and another, 4 Campb. 137.

(z) Collins v. Harrison and others, Worcester Lent Ass. 1757, MSS.

CHAPTER 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. Of the Consideration. p. 40. Forbearance of Suit, in what Cases a sufficient Consideration. p. 43. When not. p. 45.

p. 39.

Plaintiff. p. 46.

Consideration must move from
Consideration must be such as the

Party undertaking can perform. p. 48. Considera-
tion past or executed, p. 48. The Agreement must
be Legal. p. 53.
Policy. p. 56.

Of Agreements contrary to Public
Of Fraudulent Agreements. p. 60.

Immoral Agreements. p. 63.

I Of the general Indebitatus Assumpsit. p. 64. Indebitatus Assumpsit for Money paid. p. 71. Money had and received. p. 76. And on an Account stated. p. 65, n., 100.

2. Of the General Issue, and the New Rules so far as they relate to the Action of Assumpsit. p. 116.

3. Accord and Satisfaction. p. 118.

4. Infancy. p. 122.

3. Payment. p. 129; and herein of Payment into

Court. p. 133.

6. Release. p. 134.

7. Statutes. p. 135.

1. Of Limitations. p. 135.

8. Tender. p. 150.

V. Damages. p. 154.

2. Of Set-off. p. 146.

Judgment. p. 156.

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

THE action of assumpsit is an action of trespass 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 agreements (a). The action of assumpsit is confined to agreements by parol, the action of covenant (b) or debt being the proper remedy for the non-performance of agreements by specialty; for it is a general rule (c) that assumpsit will not lie where there is a remedy of a higher nature. 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 (d) or of benefit to a stranger (e), or of damage, or of loss (f) sustained by the plaintiff, at the request of the defendant; and herein the law of England adopts

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

(b) Bennus v. Guyldley, Cro. Jac. 505. (c) Bulstrode v. Gilburn, 2 Str. 1027; Schlencker v. Moxsy, 3 B. & C. 789; Baber v. Harris, 9 A. & E. 532; 1 P. & D. 360.

(d) Per Buller, J., in Nerot v. Wallace, 3 T. R. 24, and Cooke v. Oxley, 3 T. R. 653. (e) Per Gawdy and Fenner, Js., in Greenleaf v. Barker, Cro. Eliz. 194.

(f) Per Ellenborough, C. J., in Bunn v. Guy, 4 East, 194. See Bainbridge v. Firmstone, 8 A. & E. 743; 1 P. & D. 2.

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

(2) It is worthy of observation that 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, line 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. Abr. tit. "Action sur le Case," 72, without adverting to the

and recognizes the rule of the civil law, ex nudo pacto non oritur actio (g). Any act of the plaintiff, from which the defendant derives a benefit or advantage, or any labour, detriment (h), or inconvenience sustained by the plaintiff, however small (i) 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 (k), 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 (1). So where the testator had committed to the care of the defendant his children (m), 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 himself, 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 (n). So where, in the course of a voyage, some of the seamen deserted, and the captain, not being able to find others to

(g) 17 Ed. IV. 4 b.; Plowd. 305, a. 308, b.

(h) Williamson v. Clements, 1 Taunt. 523. (i) Sturlyn v. Albany, Cro. Eliz. 67; March v. Culpepper, Cro. Car. 70. See 4 Taunt. 611, and post, p. 43.

(k) Stokes v. Lewis, 1T. R. 21; Child v. Morley, 8 T. R. 610.

(1) 1 Roll. Abr. 23, pl. 29. (m) Smith v. Smith, 3 Leon. 88. (n) Harris v. Watson, Peake, N. P. C. 72, Lord Kenyon, C. J.

omission of the consideration. See the remarks of Mr. Justice Coleridge in his excellent edition of the Commentaries.

(3) The case of Wheatley v. Low, 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.