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80 Eng. Rep 255, Hobart 1052
24 March 1615.4
Mich. 13 Jac. Rot. 712.5
[S. C. 1 Sm. L. C. 11th ed. 141. See Baxendale v. London, Chatham & Dover Railway, 1874, I,. E. 10 Ex. 42; Edmunds v. Wallingford, 1885, 14 Q. B. D. 814; Blyth v. Fladgate , 1 Ch. 358; In re Casey's Patents , 1 Ch. 115; Bonner v. Tottenham,, &c, Building Society , 1 Q. B. 167; Tollhurst. v. Associated Portland Cement Company , 2 Q. B. 668; , A. G. 414.]6
Assumpsit and of consideration generally Moo. 866. Mesme. Brownl. 7. 2 Keeb. 666. p. 28.8
Anthony Lampleigh brought an assumpsit against Thomas Brathwait and declared, that whereas the defendant had feloniously slain one Patrick Mahume, the defendant after the said felony done, instantly required the plaintiff to labour, and do his endeavour to obtain his pardon from the King: whereupon the plaintiff upon the same request did, by all the means he could and many days labour, do his endeavour to obtain the King's pardon for the said felony, viz. in riding and journeying at his own charges from London to Roiston, when the King was there, and to London back, and so to and from New-market, to obtain pardon for the defendant for the said felony. Afterwards, scil. etc in consideration of the [Hobart 106] premisses, the said defendant did promise the said plaintiff to give him 100 pounds, and that he had not etc. to his damage 120 pounds.9
To this the defendant pleaded non assumpsit, and found for the plaintiff damage one hundred pounds. It was said in arrest of judgment, that the consideration was passed.10
But the chief objection was, that it doth not appear, that he did any thing towards the obtaining of the pardon, but riding up and down, and nothing done when he came there. And of this opinion was my brother [Warburton] but my self and the other two Judges were of opinion for the plaintiff, and so he had judgment.11
First, if was agreed, that a meer voluntary curtesie will not have a consideration to uphold an assumpsit. But if that curtesie 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 it self 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 355.12
Then 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.13
1. That the defendant had committed the felony, prout, etc.14
2. Then that he requested the plaintiff's endeavour, prout, etc.15
3. That whereupon the defendant made his proof, prout, etc.16
4. That thereupon the defendant made his promise, prout, etc.17
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.18
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 it self, because it is passed and incorporated and coupled with the promise. And if it were not indeed then acted, it is nundum pactum.19
But if it be executory, as in consideration, that you shall 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.20
[80 Eng. Rep. 256] Now if the service were not done, and yet the promise made, prout, etc 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.21
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.22
Now then he hath laid expressly in general, that he did his endeavour to obtain it, viz. in equitando, etc 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 expresly, 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 the riding, etc 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 [Hobart 107] were not done, which might be cause of demurrer, yet being but matter of form, and the substance in the general, which is here in 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, before he could do any thing else, or that another had obtained the pardon before, or the like yet the promise had holden,23
And observe that case 22 E. 4. 40. Condition of an obligation, to shew 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 1 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.
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