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A History of the Common Law of ContractThe Rise of the Action of Assumpsit$

A. W. B. Simpson

Print publication date: 1987

Print ISBN-13: 9780198255734

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198255734.001.0001

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Appendix of Cases

Appendix of Cases

Source:
A History of the Common Law of Contract
Publisher:
Oxford University Press

(p.623) Case No. 1 The Case of the Humber Ferryman (1348)1

Bylle de transgressio

John de S queritur per billam qe G de S certein iour et an a B sur Humbre il avoit empris de carier son Jument pris etc. en son batew outre lewe de Humbre sain et sauf per lou le dit G, surchargeant la dite bateu dautres chivalx per quel surcharge le dit Jument perist, a tort et as damages etc. Richmond iugement de bille que suppose en nous null tort einz prove qil avera accion per brief de Covenaunt plus que per voie de trespas per que etc. Bankwell, il semble que vous lui fistez trespas quant vous surchargiez le batew per qi son Jument perist etc. per qi respondez Richmond de rien coupable prest etc. et alii econtra etc.

Bille de transgressio

John de Burton se plaint per bille que G de F, certein iour et an, a B sur humbre, avoit enpris a carier son Jument etc. en son batel outre lewe del humbre sane et sure, per lou le dit B surcharge son batell dez auters chivalx per quel surcharge son jument perist, a tort et as damages Richmond iugement de bille que suppose en nous null tort mez prove qil avera accion per voie de Covenaunt et nemye per voie de Transgressio per que etc. Bankwell il semble que vous luy fistez transgressio quaunt vous surchargiez vostre batell per qi son jument perist per que respondez Richmond de rien coupable prist.2

John of Burton made his plaint by bill that G of F, on a certain day and year, at B on the Humber, had undertaken to carry his mare in his boat over the water of the Humber safe and sound, whereas the said B overloaded his boat with other horses through which overloading the mare perished to his wrong and damages. RICHMOND: Judgment of the bill which supposes no wrong [tort] in us but proves (p.624) that he will have an action by way of covenant and not by way of trespass. BANKWELL J.: It seems that you did him a trespass when you overloaded your boat whereby his mare perished; therefore answer. RICHMOND: Not guilty, ready.

Case No. 2 The Parker's Case (1465)1

A writ of annuity was brought by a man, and he claimed an annuity in respect of [per cause del] the office of park keeper granted to him for term of life to have such annuity, and this for keeping the office of parker. And it was pleaded by the defendant how this office was granted to the plaintiff etc., and to have so much etc., and that there had existed such an office there from a time whereof memory does not run, and that all men who had held the office of parker had also had the guardianship of the woods and the savage beasts as well as the park itself. And that on such a day, to wit the second day of July in the second year of the present King up to the fourteenth day of July next following, twenty-two savage beasts were killed through the negligence of the plaintiff by strangers unknown to the defendant, and that throughout this time the aforesaid keeper of the park was negligent in this matter. And he demanded judgment whether the action lay. And this plea was challenged upon the ground that there was nothing shown whereby the plaintiff ought to lose his annuity, for it is shown that the wild beasts [savages] were not killed by the advice or consent of the plaintiff, but by strangers, against whom the plaintiff will have no action, but the defendant can have his remedy…. YONGE: for the defendant. It appears that by our plea that there is default in keeping and negligence in the plaintiff in his office, for it is shown how, through his negligence in the performance of his office, and through his default from a certain day to another, so many wild beasts were taken and killed by strangers, in which case this negligent keeping of his in his office will make him lose his fee…. CHOKE J.: The defendant's pleading seems good enough, for by the plea of the defendant there appears default in the plaintiff in the performance of his office, for if through the plaintiff's negligence in park keeping the wild beasts in the park or alternatively the woods are wasted, it is not reason to give him his fee, for the parker is bound to keep reasonably. But to say that he should be there every day, this he is not bound to do as it seems to me, but it suffices for him to occupy the office three or four days a week, and not to be there each day. For if he is guarding the park and performing his office three times in four days or three days a week, this is sufficient keeping for him. DANBY C.J.: It is hard to take issue on the matter alleged by the defendant unless he says more. (p.625) CHOKE J.: Yes sir, issue can be taken on this and it can be traversed perfectly well, for if it be as the defendant has said—that through the negligence of the plaintiff etc., and through his negligent keeping the defendant's park is wasted—it is reason that the parker be punished for his default, and this can only be done through the extinction of his office and of his annuity, for through nonfeasance of an office the officer will lose his annuity, and so will it be if he misuses it. … [CHOKE goes on to reject the argument based on the defendant's having an alternative remedy against the poachers.] NEDHAM J.: A parker is not bound to be in the park every day, but to guard it reasonably suffices for him, for on feast days or at the week-end he ought to be at divine service. And also at night he is not bound to guard, but to take his rest, and also each day to take his meals. And at such times, and other reasonable times he is not to answer nor to be punished, nor kept from his annuity for nonfeasance or failure to keep at such times, for he is not bound each day to guard it, but on reasonable days and at reasonable times. And also if a number of people come against him with force, six or eight or twenty against him in the park to take wild beasts or to destroy the park, where this is against his will and where he cannot deal with this or repel them [he is not liable], for neither law nor reason compels him to fight, and drive them out with force, for he is not capable of doing so. But if he does his part reasonably in accordance with his ability, this is sufficient. And he is not bound each day, or any day, to find six or seven men, or more or less, to guard the park, but he is bound solely in his own person that he should do what is reasonable in his own person, and certain days and reasonable times suffice for him. For no law compels him to do more. But if at reasonable times or days the park is wasted through his default or negligence, then it is in accord with reason that he should answer for this, and for such cause and such default he can lose his office. For in Brandon's Case recently concerning the Marshalsey he guarded his office day and night, but he misused his office, for he let several condemned prisoners go at large, and this by his own act and negligence. And for this he lost his office for term of life, which he held through previous grant, for the grantor entered into the office and granted it to another. [He goes on to discuss the position of a gaoler.] So it is in the aforesaid case of a parker, he will answer for his negligence and default, for he will be punished if the park be wasted through his default at a reasonable time, or through his negligence. Thus this is a proper issue, namely to show that they were killed by strangers unknown to him at an unreasonable time—for example at night—or at some other time in the day by a multitude and by force, sans ceo que they were killed by his negligence or (p.626) his default, and this will be a good issue, for he will answer for his negligence and default…. DANBY C.J.: How can the pleading be in these words—that through the negligence of the plaintiff the wild beasts were taken and killed by persons unknown? YONGE: The pleading is, that the party the plaintiff from such a day to such a day, namely within twelve days, one after the other, custodire parcem praedictum neglexit, during which time twelve wild beasts were taken and killed by strangers. DANBY C.J.: It is hard to uphold this pleading, for this is not certain matter, and what do you mean by this word neglexit? YONGE: That he was negligent in the guarding of this park.

TOTA CURIA:

  • That is not an issue, for neglexit means that he did not guard [denia a garder] the park from such a day to such a day.
  • DANBY C.J.:

  • It is well that you pay some more attention to this pleading, for to say this is uncertain—that is that he did not guard the park from such a day to such a day. YONGE: Then we will say that from such a day to such a day parcem praedictum non custodivit, and in the mean time the wrong was done etc. DANBY C.J.: This is the better pleading, and much more certain etc. [Here the case ends, so presumably the amended plea was accepted by the court.]
  • Case No. 3 Anon. (1441)1

    In a writ of trespass on his case the plaintiff counted how he made a bargain with the defendant to the effect that the defendant should enfeoff the plaintiff of certain lands of which the defendant was then seised before a certain day, and how the day is passed, and that he has not enfeoffed him, a tort, and to his damage, etc. MARKHAM: This bargain sounds in covenant more than in trespass. Therefore show what you have of the covenant. Fortescue showed nothing. ASCOGH: It seems that this bargain is entirely a covenant, for if I make a bargain with a carpenter to build me a house before a certain day, which he does not do, on such a nonfeasance I shall not have a writ of trespass but an action of covenant if I have a specialty. And otherwise I am without a remedy. But if a carpenter makes my house and makes it badly on such a misfeasance I shall have a writ of trespass on my case. But in this case there is nothing done, and therefore, etc. BROWN (the second clerk): If a man prepays any sum of money that a house be built for him etcetera and he does not do it, now he will have an action of trespass on his case because the defendant has quid pro quo and so the plaintiff is damaged. And this was privately denied to him, etc.

    (p.627) Case No. 4 Anon. (1443), Probably Tailbois v. Sherman1

    In a writ of trespass the plaintiff counted that a bargain was made between the plaintiff and the defendant for the delivery of five casks of wine, and that he [i.e. the defendant] ought to transport the five casks to the plaintiff at a certain place before a certain day, and that he did not transport them there to his damage. CHINGHAM: Judgment of the writ, for it well appears from his action that he ought to have a writ of covenant and not a writ of trespass, for a man will never have a writ of trespass without supposing a tort committed by the defendant, and he has not supposed any tort committed by him. Thus it seems to me that the writ should abate. ASCUE: If my arm is broken and I make a covenant with another to apply ointments to this and he does not do so and so as a result my arm is lost I shall have an action of trespass on the case, etc. DAVERS2: If he makes a covenant with me to make a house before a certain day, and if he makes no part of the house by the said day I shall never have an action of trespass but a writ of covenant. But if he cuts my timber and does not make the house, or if he makes part of the house but not all, or if he makes it badly, I shall have an action of trespass on my case, etc. And the opinion was that this plea went to the action and not to the writ, and so the defendant took leave to imparl.

    Case No. 5 The Surgeon's Case (1375)3

    A woman brought a writ of trespass against one H a surgeon of London, and the writ said that her right hand was wounded by one F and the defendant undertook [emprist] to cure her, whereas by the defendant's negligence her hand is perished, whereby she is maimed, to her wrong and damage, etc. And note that no place was put in the writ, where he undertook, etc., but in her count she declared it, to wit at the Strand Cross. HASTY: He did not undertake to save her, ready to wage his law. PERSAY: This is an action of trespass which lies in the knowledge [notice] of the country, therefore wager of law is not available. FYNCH: But it is not law, etc. to answer [that when the writ is] not contra pacem, so that it seems that wager of law is available. But it seems that the action does not lie for she was not maimed by the defendant but by the person who did it to her, and if she recovers damages now against us she will recover on another occasion against the person who maimed her, and thus twice, etc. Nevertheless ready, etc. [i.e. ready (p.628) to wage law]. And the other side to the contrary. HASTY: Now judgment of the writ because no place is put in certainty. PERSAY: You affirm the writ to be good by the tender of issue. Yet the writ was abated.

    Case No. 6 Pickering v. Thoroughgood (1532)1

    Richard Pickering, a brewer of London, brought an action on his case against John Thoroughgood, and counted that the defendant on the thirtieth day of October in the twenty-third year of Henry VIII in London in the parish of St. Giles outside Cripplegate, in the ward of Cripplegate, for £5 13s. 4d. previously paid to him and for £5 13s. 4d. to be paid at the feast of the Purification next following, bargained and sold to the plaintiff forty quarters of malt, to be delivered in London in the said parish before the said feast, and assumed and promised to deliver it accordingly. And he counted that he, the plaintiff, being in hopes of this, made less provision for malt to maintain his art of brewing, and that the defendant did not deliver the malt before the aforesaid feast, whereby the plaintiff was without malt, and was compelled to buy malt at a very much greater price to continue and maintain his art of brewing, to his damage £20. And the defendant traversed the promise and the assumption, and this was found against him. And the plaintiff prayed judgment. And the other party by his counsel—Cholmeley and Hinde, Serjeants, alleged in arrest of judgment that this action did not lie because an action of debt lay, and where a general action lies there, in the same case, a special action on the case does not lie.

    SPILMAN J.:

  • It seems that an action on the case lies, for when a man has a tort done to him, and has sustained damage, he can have an action, but for this reason: when the defendant broke his promise and assumption, he did a tort to the plaintiff, and the plaintiff has sustained damage by the failure to deliver the malt. Therefore the law will give him an action, and no action lies on this except an action on the case. And therefore the action lies. And in some books a difference has been taken between nonfeasance and malfeasance, so that on the one an action of covenant lies, and on the other an action on the case. This is no distinction in reason, for if a carpenter for £100 covenants with me to make a house, and does not make it before the day assigned so that I am deprived of lodging, I shall have an action on my case for this nonfeasance just as well as if he made it badly. And as for the fact that he could have an action of debt, this makes no difference, for that action is based on the debt and detinet. But this action is based upon the other person's tort, that is, on the (p.629) breach of promise. And if a man sells me his land for £100 and promises to make me an estate before a certain day, and if he enfeoffs another, I shall have an action on my case for this deceit, and yet covenant lies because he has performed no part of his promise. But such an action is based on the covenant broken, and the action on the case is based upon the deceit with which he has enfeoffed another. And in the same case if he had retaken an estate, and before the day he had enfeoffed me, the action on the case lies if he had warranted to him and his heirs and assigns, for by the taking of the estate he is in of another estate, and so the warranty is void as regards me. And if a man bails goods to be looked after, and he converts them to his own use, in this case he can also have an action of detinue, but this is based on the bailment and on the detention. This was the case between Bowser and Chapman (1530) where Bowser delivered a chest of plate with a bag of money to one who was his executor, and then the chest and bag came into the hands of one Chapman, and he broke the chest and the bag and converted the plate and the money to his own use. And in an action on the case brought by Bowser the issue was taken on the conversion to his use. It was found for the plaintiff, and the plaintiff had judgment to recover; and yet he could have had an action of detinue, but this made no difference. And the reason is clear, and therefore, etc.
  • MASTER PORTMAN J.:

  • To the contrary, that this promise is part of his covenant, and all one, and no act done by the defendant but solely the non-delivery for which detinue lies.
  • CONINGSBY J. and FITZJAMES C.J.:

  • It seems that the action lies, and it is at the election of the plaintiff to choose one action or the other, for they are based upon different points as SPILMAN has said. And if a man bails money to one to bail to one B, and he does not bail it, it is at the pleasure of the bailor to bring debt, account, or an action on his case, for the actions are based on different points. If a man bails his robe to me to look after, and by my carelessness the robe is eaten by moths, on this negligence and ill-keeping he will have an action on his case and also a writ of detinue at his pleasure. And although in the action of detinue I can wage my law, but cannot in the action on the case, yet this makes no difference, for in the case of Chesman [i.e. Chapman] above, which is good law, he was ousted of his law which he could have had well enough in an action of detinue. And there are many precedents where a man has bailed goods to be looked after, and where the bailee has converted them to his own use or has looked after them badly, and the bailor has had an action on the case, yet he could have had an action of detinue in which the bailee could have waged his law. And so why should he (p.630) not have this action, granted that he could have had an action of debt in which the defendant could have waged his law.
  • And therefore judgment was given for the plaintiff that he should recover damages.

    Case No. 7 Anon. (1542)1

    Action on the case was brought, and the plaintiff declared how he delivered to the defendant twenty quarters of barley, and how the defendant assumed upon himself to deliver to the plaintiff in place of the twenty quarters of barley twenty quarters of malt before a certain day, and how the day is now passed and he has not done so, and so he has brought his action. The defendant came and said that the plaintiff at a certain place in another county sold the said twenty quarters of malt to a stranger, and he delivered them to him, and asks judgment whether the action, etc. [Objection was taken to the plea by Townsend on technical grounds.]

    SHELLEY J.:

  • It seems to me that there is another matter in the case, for I believe that the action does not lie here, for action on the case lies in no case except where the plaintiff is without another action, but here he can have an action of detinue. But I perceive your purpose in bringing this action—because he cannot wage his law in this action as he can in an action of detinue, etc. But supposing that the action does lie I am of the same opinion as you are, that the plea is not good. Which WILLOUGHBY J. conceded.
  • Case No. 8 John Style's Case (1527?)2

    The case was that a man delivered an obligation to one John Style to safely guard it, who assumed upon himself to do so, and promised. The seal came off it when it was in the custody of J.S. and on this the obligee brought an action on his case against J.S. The question was if he should have an action on the case or a writ of detinue, and it was held by all except Inglefield that he should have an action on the case if he wished. And as to the objection that was taken that where he could have had an original writ at the common law there he would not have an action on the case, this was held not to be so, for he could have the one or the other. But never for the point raised here could he have an action at the common law. For example in detinue if he brought an action on the case and declared on the detention of the bond this would be no good, for he has an action of detinue on this point. But the taking off of the seal and misordering (p.631) of the bond is a different thing suffered by him, for which different thing he will have an action on the case. And it was said that the defendant had only committed a nonfeasance for which he would not have an action on the case. To this they said that if this nonfeasance amounted only to a nudum pactum then this was a good objection—for example if I promise you to build you a house by a certain day, which is not done, this is only a nudum pactum for which I will not have an action on the case and have suffered no tort by this nonfeasance. And if he has suffered a tort by this then it is otherwise, as if I am bound in an obligation in £40 to pay £20 by a certain day and I deliver the £20 to a stranger and he promises to deliver before the day, and he does not pay this before the day, so that I have forfeited my obligation, there for the nonfeasance I shall have an action on the case, for he has done wrong [tort] to me. The law is the same if I give certain money to one to make me a house by a day, and he does not do this by the day—there this is a consideration [sic] whereby there for the nonfeasance I shall have an action on my case. The law is the same in experience, and agreed by the justices in the common bench, that where a man recovers in ancient demesne certain lands, and he who recovers gives certain money to the clerk to make entry of the matter so recovered, which he does not do, there it was agreed that he should have an action on his case for the nonfeasance. But if he dies his heir will not have this action which his father could have, for it is a personal action and dies with the person [cum persona].

    Case No. 9 Sukley v. Wyte (1543)1

    In an action on the case brought by Sukley of London against Wyte, etc. the plaintiff declared that the said defendant came to him with a capias on the first day of May in the thirty-second year of the reign of our lord the King who now is, the said plaintiff then being one of the sheriffs of London, and begged that the writ be served on one J.S. To which the plaintiff said that the said J.S. was a burgess of Parliament, and so he was not able to serve it. And the defendant said to him that he was willing to guarantee him without damage if he was willing to arrest him, by force of which the said plaintiff, then a sheriff, arrested the said J.S., then a burgess of Parliament. And because of this arrest he was in the Tower and lost his office and so was put to great damage by this arrest, on which matter he had commenced his action.

    BROMELEY:

  • It seems to me that the action does not lie, and the cause is because his action is grounded on a nude promise, and there is no specialty nor any money given in the covenant, but it is (p.632) nothing more than a promise, on which promise he cannot have his action.
  • HALES:

  • To the contrary, and as it seems to me the action lies. And as to what has been said, that a man cannot have an action on a promise, this is not so. For if I promise my brother Sanders that I shall make him a house, if I make part of it and not all he can have an action on his case against me. Or if the house is not as long as I promised he can have an action. Or if a smith promises me to shoe my horse and not for money paid before, if he injured my horse I shall have an action on my case. Or if a surgeon takes on himself to make me well of my disease, if he does not make me well but I fall into other diseases I shall have an action on my case against him. And also if I sell my horse to one J.N. for a certain sum of money and a stranger is with him, and I say to J.N. that I am not willing to trust him for the sum of money, and the stranger takes upon himself that if J.N. does not pay that he is willing to pay, and the purchaser dies before he has paid the sum, and the stranger makes his executors and dies, and the seller brings an action on the case, and the action was well maintainable, and so here etc.
  • SHELLEY J.:

  • This last case is a doubtful case, and as it seems to me the action on the case does not lie against the executors on a promise made by their testator, which all the court as it were affirmed, but quaere.
  • WILLOUGHBY J.:

  • It seems to me that the action at the bar is well maintainable, for I am willing to show a case which is very like it and is in a book. If the sheriff takes the beasts of one J.S. in Withernam, and the said J.S. says to the sheriff that if he is willing to deliver the beasts to him tomorrow that he is willing to guard him without damage, and he delivers them, and after the sheriff is amerced, in this case he can have an action against him, and so here.
  • SHELLEY J.:

  • This is a good case, and great erudition can be developed by this case, for strong arguments can be made in favour of both parties. For on the one side a man could say that this action is not maintainable because the defendant took upon himself to guard the plaintiff free of damage for nothing except a thing that he was entitled to do by law, that is for the arrest. For the arrest was good, and a man can arrest a burgess of Parliament, and this arrest is good, but it can be avoided by supersedeas or by plea (and thus bar him so that he does not have to answer), and in consequence if the defendant took upon himself to guard him free from damage for a thing which was legal, he has no cause of action against him etc. But notwithstanding these reasons I am not prepared to say definitely that the action does not lie, but I wish to be advised on this for it is a doubtful case. So quaere. And then it was adjourned.
  • (p.633) Case No. 10 Lord Grey's Case (1567)1

    An action on the case against Arthur Lord Grey whose father was indebted to the plaintiff. The defendant in consideration of this and of two shillings paid to him by the plaintiff assumed upon himself to pay him the same debt. And GAWDY demanded of the court whether the consideration of two shillings was traversable, or, if we were to traverse here by plea of non assumpsit modo et forma, whether the plaintiff ought to prove the consideration.

    DYER C.J.:

  • No, for this is only alleged as a matter of course, and it is alleged now so faintly in the King's Bench that it is too late to stop this there.
  • GAWDY:

  • Then we are put to a mischief, for he has no other consideration to charge us, for the son is not chargeable with the debt of his father. But I understand that whenever the assumption is the cause of the debt, there the action lies well, as where negotiations for a bargain are held between two people, and they are agreed on the sum and the day of payment and everything, but one mistrusts the credit of the other—there if I am willing to say ‘Do not doubt, if he does not pay on the day I shall’, this is a good assumption and will charge me. For the other would not have been willing to give credit had it not been for my promise. But when the debt was due before it seems to be that it is not reason to charge a man by such naked words without any consideration.
  • DYER C. J.:

  • The case which you have put is much clearer. And so it is that if a man is in execution at your suit, and I say ‘Discharge him, and if he does not pay I am willing to do so’, this is a good consideration if you discharge him to charge me in an action on the case, for there because of my promise you discharged the execution as in Tatom's Case in twenty-seven Henry VIII. And it seems to me that it will also be the same when there was a debt in existence before, for the discharge and ease of my friend is a good consideration to charge me without more. And therefore if my brother, cousin, or friend is indebted to you, and I say to you ‘If he does not pay you I shall’, here if you forbear because of this to sue and charge my friend, this is a good consideration to charge me, for what you did in ease of and for the benefit of my friend is to my ease and benefit also. Therefore etc. To which Weston J. agreed.
  • Case No. 11 Marsh v. Rainsford (1587)2

    An action on the case on assumpsit was brought by Marsh, a leather seller, of London against one Rainsford of the County of Essex, and he declared that there was a communication between himself and (p.634) Rainsford concerning the marriage of Marsh with Rainsford's daughter and it was [proposed] by Rainsford to the plaintiff that he should have £200 with her, but they could not agree upon the day of payment. And then Marsh stole away Rainsford's daughter, and married her without the knowledge or consent of Rainsford, yet after this he consented to it, and said that in consideration that he had married his daughter he promised to give him £200. And on this promise Marsh brought the action, and showed how there had been talk about the marriage beforehand, and how he had proffered £200 with his daughter, but he founded his action on the promise after the marriage. SOLICITOR EGERTON: The action does not lie, for the consideration upon which the action should be founded ought to be to be executed in the future, and not precedent, and here he supposes the promise to be made after the marriage had and executed. Also he showed that there was a communication of marriage before, but he has not shown that he acted in pursuance of this, but independently he stole Rainsford's daughter. If I promise my daughter £100 at her marriage nevertheless he cannot have an action for this £100. 10 Eliz. 272 [Hunt v. Bate] my servant is arrested in London, and another because of his goodwill towards me bails him, and then I hear of this; I say to him that for the friendly consideration I promise and assume to save him harmless against the party of all damage and costs if any be adjudged. Then he is sued to condemnation, and the surety pays, and on this he brings action on the case. And it is held that the action does not lie—see the reason. But there in another action on the case on a promise made for £20 by the defendant to the plaintiff in consideration that the plaintiff had at the special instance of the defendant taken the cousin of the defendant to wife, there it was a good consideration, although the marriage was past and executed before the assumption and promise, because the marriage followed upon the defendant's request. And also land can be given in frankmarriage as well after the marriage as before, for the marriage can be understood to be the cause. And so there is a distinction between these two cases, which he compared to our case here. And according to him if I covenant to be seized of certain land to the use of my daughter the use by this is raised, at once, but if I say that I will give £100 to my daughter at her marriage I will not be charged by an action on this, for such a promise on such a consideration is not sufficient to ground an action although it is sufficient to raise a use. FULLER: Although there was a communication and talk of marriage, and nothing was certainly determined, yet this is a good consideration in conscience, and therefore it is good to have an action on his case. For just recently this case was ruled: if an infant requests another to be bound for (p.635) him, and promises him to save him harmless, and he is bound, this consideration which is here precedent is only good in conscience [text has ‘in consideration’] and not in law. And when he comes to full age he says to him ‘In consideration that you are bound for me, I will save you harmless’ on this assumpsit he will have an action on the case. SOLICITOR: I concede this case; but if I say to my servant ‘In consideration that you have given me good and faithful service I shall give you £20’ this was adjudged not such a consideration on which an action can be founded. WRAY C.J. took a distinction, viz. where the defendant requests the plaintiff to do something and then he does it, and then when it is done he says ‘In consideration that you have done the thing for me I promise, etc.’, there he will have an action on the case on this promise made on consideration precedent. But there the request ought to be alleged in fact. But if no request be made on the defendant's part, but the plaintiff does the thing off his own head, although he promises afterwards that in consideration that he has done such a thing, etc., yet no action can be based on this promise. And as to the principal case here he believed the action not to be maintainable, for there it is solely alleged that there was a previous communication, and not a request at the instance of the defendant whereby, etc.

    On another day this term the case was moved again by POPHAM, Attorney, and he was representing the plaintiff, and he said that the natural affection of the parents to their children that the marriage be consummated is a good consideration to have an action. SOLICITOR: I concede that it is a consideration, but not such that an action can be grounded upon it—that is a personal action by the child against the parent. POPHAM: He can have a subpoena on a covenant to be seised to the use of his daughter in respect of natural affection and therefore by the same reasoning he can have an action on the case on such a promise on such consideration. If I be of counsel with one, and he, before I give him counsel, promise nothing, but after says ‘Seeing that you have given me your counsel, I promise you £10’, I shall have an action for this as the case was ruled in the Exchequer. COOKE: To the same effect. There are numerous actions in this court which are founded on similar promises, as ‘whereas the plaintiff had delivered to the defendant so many goods, he promised to pay him so much money’ and on this infinite actions have been maintainable here. SOLICITOR: I concede the case put by Popham of a promise in consideration of counsel, for there is always understood a precedent retainer, and after when he promises this it is in pursuance of his previous retainer. As for the case put by Cooke it is not the same as our case. If I exhort or request one to marry my daughter and promise nothing, and he (p.636) marries, and then I say to him ‘In consideration that you have married my daughter I shall give you £100’, he shall have an action for this. COOKE: If one who is a physician and my good friend, knowing that my son is ill, comes to him and cures him, and then when I hear of this, I say to him ‘Seeing that you have cured my son I shall give you £20’, he shall have an action for this. As for the case of a delivery, previously vouched by me, it was between Stile and Smith in this court. DANIEL: To the same effect. 29 Edw. III, a bailiff of a manor made a good account to his master, upon which the master said to him ‘Seeing that you have been … and have yielded a good account to me I shall give you £10’. He had debt; therefore it is the same if I say to you ‘Seeing that you have built me a house, I shall give you ten pounds’. So here.

    At another day it was moved again, and for the plaintiff it was shown that at the instance of Rainsford there had been a communication held of marriage, and that then he married the daughter of Rainsford, and in consideration of the premisses he promised Marsh, etc. SOLICITOR: He has not alleged that he married at the instance of Rainsford, and there ought to be other consideration concurrent with the promise or future consideration. POPHAM, Attorney: Natural affection remains [i.e. continues] and this is sufficient consideration to make frankmarriage after the marriage and to raise uses, and so in our case here, and for this reason the conclusion of the case in 10 Eliz. [Hunt v. Bate] is against us if it be well. … WRAY C.J.: When I promise him so much money in consideration that he has married my daughter this also is understood to be included in my promise, that he ought to use my daughter well, and this is future and executory, and thus it seems to me that the consideration is sufficient. GAWDY J.: The marriage cannot be understood to be against his will, for the communication before marriage was at his instance, and since he married her then did he promise, which proves his consent. Therefore it appears to us that the marriage was in pursuance of the communication. [REPORTER:] And as I gather the better opinion of the justices was that if one marries my daughter without my request, or without any communication had with me, or against my will, nevertheless if after the marriage I say that in consideration of his having married my daughter, I shall give him so much money, that on this he will have an action, for the natural affection is sufficient. Yet query, for Wray C.J. said when Egerton first moved this case in the court, that there had been a common distinction drawn to this effect: that if a man marries the daughter of J.S. with his consent and privity, and after the marriage had J.S. promises him in consideration of this to give him £100, now assumpsit will lie, whereas if the marriage is had (p.637) without consent and afterwards the father promises him in consideration of this to give him £100, now assumpsit will not lie…. Afterwards Wray with the assent of his brothers said ‘Enter judgment for Marsh £100.’

    Case No. 12 Fuller's Case (1588)1

    A promises to an elder son that if he should be willing to give his consent that his father should convey his land [i.e. the father's land] to someone, that he would be willing to give him forty shillings; now if he gives consent, although no estate is conveyed, nevertheless he can have assumpsit. And it was the case of Fuller. But on another day Periam said that in this case the son ought to promise to give his consent in consideration of the other promise, or otherwise A has no remedy if the son is unwilling to give his consent, and if it is thus the case that each one has a remedy against the other it is a good assumption. And in the following Hilary term Serjeant Fermor spoke in arrest of judgment on this special verdict. And he said that since the undertaking was only on one side, and the other was free if he wished to give his consent or not, although he consents he will not recover. Also the promise was that he should be willing to consent that his father should make assurance to him, and here it is made to A to the use of the defendant and his wife in tail, so that he varied from the first consideration…. Serjeant Shuttleworth to the contrary, and he said that seeing that he had performed this by giving his consent, then, he having performed, it is irrelevant he was not under an obligation to do so by reciprocal undertakings to do so. But if he will not give consent, he will get nothing. And at last judgment was entered for the plaintiff. And Periam, in speaking on this case, doubted whether if a man agrees to convey an estate to A, and the conveyance is to the use of A, if this would be good or not.

    Case No. 13 Anon. (1588)2

    I having a term sell this to J.N., and then I continue my possession as before. And then a third party promises me to give me £20 in consideration that I should be willing to assign to him all the interest that I have in the land. I assign this and then bring an action on the case on an assumpsit. And it was held by the justices that it did not lie because it is a nude pact. For I have nothing, and it is only in a manner of speaking that I made this assignment of the land of J.N. … And here they held that the defendant could plead non assumpsit, and give in evidence that there was no quid pro quo, and he shall not be compelled to plead the special matter.

    (p.638) Case No. 14 Megod's Case (1586)1

    Megod brought an action on the case against two, and the case was as follows. One Mounson enfeoffed two persons of land to the intent that they should convey this land to whoever he should sell it to subsequently. And then he sold it to the plaintiff, and they did not convey it to him accordingly, and on this he brought this action. And it was argued for the defendants that the action did not lie, seeing that there was no consideration as between the plaintiff and the defendants, but this was solely between the said Mounson and the defendants. GAWDY J.: No one is damnified except the plaintiff. SHUTE J.: There is no consideration as far as he is concerned, for when they were enfeoffed there was no knowledge as to to whom it should be sold and it would be hard by matter ex post facto to raise a consideration between him and the defendants, they being uncertain to whom it should be sold. On another day Rokeby for the plaintiff said that the benefit is not reserved to the feoffor himself, but to the person to whom it should be sold. Also they have good consideration, for they are to take the profits in the mean time before he bargains and sells, which is a good consideration. GODFREY: The consideration does not arise between the plaintiff and the defendants, therefore the action does not lie. I concede that the bargain and sale made by the feoffor to the plaintiff is a good consideration between them, but not between the plaintiff and the defendants. SHUTE J.: There is no consideration between the plaintiff and defendants to raise the action, and therefore it does not lie. GAWDY and CLENCH JJ.: The action lies well, for they said that this is a good consideration, seeing that there is a trust placed in them that they should make an assurance to the other. And where there is a good consideration in the Chancery, on this an action on the case can lie here. And judgment was entered that there was good consideration and that the action lies well. In Cowdray's Reports, the defendants never made a promise to the plaintiff to make assurance of this land. Query, for it would seem that the contrary was the case according to their argument and the reasons given here.

    Case No. 15 Harwold's Case (1586)2

    An action on the case by Harwold against another on an account between the plaintiff and the defendant. The defendant was indebted to the plaintiff in £10 and promised him that if he would postpone the day of payment of the said £10 for a little time, that he would be willing to pay him when required by him. And the case depended in law upon a special verdict on the question whether this was a (p.639) sufficient consideration for him to have an action of assumpsit, and it was adjudged that it was. And yet it was urged that a little time could be a quarter of an hour, which is no consideration. But Windham and Periam said that the consideration of ‘a little time’ is not very much material, but the debt is the chief matter and the ground of the action. And according to Periam if a man is indebted to me in the sum of £10, and he says that he is willing to pay me by such and such a day, and does not say ‘inconsideration that he is indebted to me in a sum of £10 he is willing to pay’ nevertheless assumpsit lies well.

    Case No. 16 Harvey v. Yonge (1602)1

    S having a term sold this to B for £150. S affirmed this to be of this value. B placing his faith in this gave the money to S and afterwards offered to sell this term to another, but was only able to obtain £100 for it. B therefore brought an action on the case in the nature of deceit, and on a plea of not guilty a verdict was found for the plaintiff. And it was held that an action does not lie at the suit of this B on the naked assertion of S, and it was his folly that he was willing to give this to him. But it would be otherwise if S had warranted the term to be of such value, for the warranty is a means of inducing confidence.

    Case No. 17 A Writ of Trespass on the Case for Nonfeasance (C. 1405)2

    … ostenturus quare cum idem R de H quendam equum de praefato R de C in parochia sancti Dunstani in Fletestrete Londoniense pro certo viagio per ipsum R de H tunc faciendo pro quodam pecunie summa dicto R de C soluta emisset ita quod expleto viagio illo praedictus R de C equum ilium dummodo in bono statu existet a praefato R de H per eadem summa exceptis sex solidis et octo denariis praefato R de C resoluenda cum per ipsum R de H super hoc foret requisitus recipere teneret idem R de C equum praedictam in bono statu existentem in forma praedicta recipere licet inde sepius requisitus fuerit penitus recusavit ad dampnum ipsius R de H lx s. ut dicit.

    … to show why, whereas R de H [the plaintiff] for a certain sum of money bought a certain horse of the said R de C [the defendnt] in the parish of St. Dunstan in Fleetstreet, London, for a certain journey which was then about to be made by the same R de H, on the terms that when that journey was over the said R de C should (p.640) be bound to take back that horse from the said R de H, provided that it was in good condition, when asked to do so by the said R de H, and to do so for the same sum of money paid to the said R de C less six shillings and eightpence, yet the same R de C has utterly refused to take back the said horse, which is in good condition, on the terms stated above, though he has often requested to do so, to the damage of the said R de H forty shillings, as he says.

    Notes:

    (1) First text from Bodleian Library M.S. Bodl. 364, f. 90b. Second text from MS. Exeter College, Oxford. 134, f. IV. Both transcribed by Mr. G. D. G. Hall, second text translated.

    (2) The incident probably occurred between North and South Ferriby where the ancient route crosses the Humber.

    (1) Text from Y.B. 5 Edw. IV, Long Quinto f. 26.

    (1) Text from Harvard MS. 156, unfoliated, Michaelmas Term of 19 Hen. VI. In the King's Bench.

    (1) Text from Harvard MS. 169, unfoliated, Paschal 21 Hen. VI. See Y.B. 21 Hen. VI, f. 55, pl. 58, for Tailbois v. Sherman.

    (2) Presumably Danvers J.

    (3) Text from Statham, Abridgement, Accions sur le Case, pl. 9.

    (1) Text from B.M. MS. Hargrave 388. See SS 93 4, 94 at p. 247.

    (1) Text from Library of Congress MS. Gell at f. 15. This collection of year-books once belonged to Anthony Gell, and is mentioned in the Ninth Report of the Historical Manuscripts Commission.

    (2) Text from B.M. MS. Hargrave 388, f. 215b.

    (1) Text from Library of Congress MS. Gell at f. 13.

    (1) Text from Bodl. MS. Rawl. C. 112 at f. 292.

    (2) Text from Harvard MS. 16 at f. 393b.

    (1) Harvard MS. 16 at f. 229a.

    (2) Harvard MS. 16 at f. 423a. In the King's Bench.

    (1) Harvard MS. 16 at f. 338a.

    (2) Harvard MS. 16 at f. 254a.

    (1) Harvard MS. 105.

    (2) From Harvard MS. 26, f. 90a, a Register probably begun in 1404, but perhaps in the fifth year of either Henry V or Henry VI.