derives a benefit from the consideration, it is often tantamount to a request; and a jury will infer one, for the purpose of enforcing a meritorious legal claim.' The same doctrine is applied in cases of mere legal duty which the law enforces through the medium of a suit on an alleged promise, without regard to the will of the party-as for the support of a wife wrongfully discarded by a husband, &c. A previous request (as well as a promise) is here inferred by a jury, directly contrary to the fact, on the ground of legal obligation only. The case of Jenkins v. Tucker' was decided on this ground, where the expenses of the funeral of the defendant's wife, incurred and paid by her father, were recovered of the defendant, who was out of the country at the time of her death.' So of the case of Tugwell v. Heyman, where executors, who neglected to give orders for the funeral of the testator, were held liable to the person who furnished it.

In a majority of the cases where the plaintiff has failed for want of an averment of previous request, the jury, under the direction of the court, would have inferred a request, from the circumstances of the case, if it had been alleged in the declaration. In some of these cases, they found a verdict for the plaintiff, though no request was alleged.

The whole amount, then, of this doctrine of executed consideration is simply this-that one man cannot make another his debtor without his assent, expressly given or implied by law; and that the forms of pleading are such, that the mere statement of a promise on such a consideration does not show, that there is any consideration for it except a voluntary courtesy, which will not uphold an assumpsit.

1 1 Saund. 264, note; Chit. Con. 15; 14 Johns. 192, Oatfield v. Waring; 4 East, 83; 3 Bos. & Pul. 612.

2 1 H. B. 90.

See also Dyer, 272. b. in marg. note b. ⚫ 3 Campb. 298. See also 10 Pick. 156.

If a consideration be "executed in part only," it will support a promise. Modern writers call this a "continuing consideration." The case of Cotton v. Wescott' may be taken to illustrate this doctrine. The plaintiff declared that the defendant married a maid who sojourned in the plaintiff's house, and "did then desire the plaintiff that his wife might still continue in the house a year longer, to which the plaintiff agreed; and afterwards, about the middle of the year, the defendant promised, in consideration that the plaintiff would suffer the wife to continue in the house for the whole of the year, he would pay the plaintiff for the whole year, as well the past as the future." This, as alleged in pleading, is a clear case of an executory consideration. And if it had been an executed one, a previous request is alleged. But if it had been alleged that the defendant, in consideration that the plaintiff had permitted the wife to be in his house for six months, promised to pay therefor and for her subsequent residence there for six subsequent months, at the defendant's request, a good consideration would have appeared, viz. : one executed in part only, though that part was not at the request of the defendant.

In Pearle v. Unger the plaintiff declared that the defendant, in consideration that the plaintiff had occupied his land, and paid him rent while he occupied it, promised to save the plaintiff harmless during the term, as well for the years past as to come, and alleged a distress of his cattle before the promise. The defendant was held liable, on the ground that as the defendant had paid and was to pay rent, there was a good consideration for the promise. Anderson, J. says that although where the contract is determined, a

13 Bulst. 187; 1 Rol. Rep. 381. S C. See also 3 Woodeson, 144; Clayt. 43, Merriwether's case; 1 Lil. Ab. 114.

2 Cro. Eliz. 94; 1 Leon. 102. S. C. See also 2 Bulst. 73, Jones v. Clarke. 3 Godb. 31.

promise is void, yet it is "otherwise upon a consideration of marriage, for that is always a present consideration, and always a consideration, because the party is always married." Walmsley, J. says "an assumpsit, in consideration that you had married my daughter, to give unto you £40 was good; for the affection and consideration always continue." These are dicta only; but the case of Marsh v. Kavenford was adjudged on the same principle.

There are cases, upon consideration executed in part only, that are not very intelligible. The doctrine seems sometimes to have been misapplied, or at least greatly strained, for the purpose of maintaining an apparently meritorious action. It is not possible to ascertain, in every instance, what form of declaration was adopted. In some cases, the consideration seems to have been stated as wholly executed, but it further appeared, from the facts alleged, or from necessary inference from them, that the whole benefit of the contract had not been enjoyed by the promisor, which circumstance was regarded as sufficient to take the case out of the rule applied to considerations wholly executed and past. In the summary form of declaring in indebitatus assumpsit, in use at this day, such cases cannot arise. The record would not furnish the court with the means of ascertaining that the consideration was executed in part only. A special declaration would be necessary, in order to enforce a promise in such case.'

1 Cro. Eliz. 741.

2 Cro. Eliz. 59; 2 Leon. 111. S. C. See also 3 Salk. 96.

* See cases on this point, collected in Com. Dig. Assumpsit, B. 12; Bac. Ab. Assumpsit, D.; 1 Pow. Con. 349, et seq. Chit. Con. 16; Cro. Eliz. 138, Warcop v. Morse. It may be worthy of notice, that chief baron Comyns, in his Digest, (ubi sup), has placed under the head of "Consideration executed in part," not only the class of cases above noticed, but also those in which the consideration is alleged to be that the promisor had accounted and was found in arrear. The cases in which the consideration is the "being indebted," would seem, on the same principle, to fall into this class; and accordingly

:

As the distinction between executed and executory considerations is a matter of pleading, and respects only the modes of averment in a declaration, the rule seems to be this, viz. if the consideration appears on the declaration to be a continuing consideration, it is substantially good, though a request of the party be not alleged; but if the consideration appears to be wholly executed and past (that is, if there is no continuing consideration, nor averment that the party is at present indebted) an averment of a request is indispensable; and if the consideration is executory, request and performance must both be alleged.

This, however, more properly belongs to the subject of pleading, and has been noticed here only for the purpose of explaining the doctrine of executed consideration.

As there will probably be no occasion to advert hereafter to the fictions adopted in setting forth the plaintiff's claim in declarations in the action of assumpsit, it may not be amiss to present, in this place, a succinct view of those fictions, and of the reasons on which they are founded.

The usual action on a simple contract, in old times, was debt. The declaration, in that action, averred in substance that the defendant owed the plaintiff and thereupon an action had accrued, &c. No promise was alleged; for no promise was necessary. But the defendant was allowed to wage his law. To avoid this wager of law, a new form of action was devised, to wit, the action of assumpsit, in which a promise of the defendant was alleged, and was indispensable. A declaration, which did not aver such

Mr. Comyn, and Mr. Chitty, junior, place the case of Hodge v. Vavisor (above cited) under this head, 1 Com. Con. 25; Chit. Con. 17. It is not easy, perhaps, to understand the reason of chief baron Comyns's arrangement, unless by "in part" he meant cases where the original consideration was executed, but there is a still continuing consideration for a promise, and so not wholly executed, in the sense generally attached to the words functus officio. In the present state of the law, this arrangement seems not to be accurate.

promise, was insufficient even after verdict; and the law is the same at this day. The promise declared on is always taken to be express. In pleading, there is no such thing as an implied promise. But as no new rule of evidence was required, in order to support the new action of assumpsitit being necessary only to prove a debt, as was necessary when the action was debt-the fictitious doctrine of an implied promise was introduced; and for the sake of legal conformity, it was held, when the defendant's legal liability was proved, that the law presumed that he had promised to do what the law made him liable to do.

As no gratuitous promise binds the promisor-a consideration being necessary to the validity of a simple contract— and as a promise on an executed consideration does not show that it was not gratuitous, unless it be averred to have been executed at the request of the promisor; it has always been held necessary to allege such request in the declaration. But here again no new rule of evidence was required in order to support the action. The defendant's request was therefore held to be implied in those cases where he was legally liable to the plaintiff as he would have been in the action of debt.

A single example will fully illustrate these two fictions. A husband is bound by law to support his wife; and if he wrongfully discard her, any person may furnish support to her, and recover pay therefor of the husband. In the action of debt, there would be no necessity to allege a promise, in such case. But the husband might wage his law, and defraud the plaintiff. In the action of assumpsit, the furnishing of the supplies must be alleged to have been by the plaintiff at the husband's request, and a promise of the husband to pay must also be alleged. But proof of the actual facts supports both these allegations. The husband,

1 Gilbert on Debt, 364; Gould Pl. 58, 59; Comyn on Con. part iv, chap. iii.