Latch. 160, it is said he is, and that seems the most reasonable determination.--Brooking v. Jenning, M. 26 Car. II. 1 Mod. 174. If an executor compound with the creditors, and after at the suit of auy of them plead plene administravit, proof of the composition would be conclusive proof of assets, and the court would not suffer him to give evidence of no assets.-Per Holt, C. J. E. 4 Ann. Salk. MSS. (a) Attorney's Fees.-By 2 Geo. II. c. 24. No attorney shall maintain any action for fees until one month after he shall have delivered a bill written in a common legible hand, and in the English tongue (except law terms and names of writs) and in words at length (except times and sums) subscribed with his proper hand. It has been holden, 1. That this act may be given in evidence on the general issue. 2. That it does not extend to the executor of an attorney. 3. Nor to business done in conveyancing.- Birkinhead v. Fanshaw, H. 2 W. III. Salk. 86. Milner, Gent. v. Crowdall, M. 3 W. & M. 1 Show. 138. The court will upon motion stay proceedings till the plaintiff has delivered a bill.-1 Barnes, 28. 2dly. Special assumpsit.—In a special assumpsit the plaintiff must prove his declaration expressly as laid, therefore if the agreement be to deliver merchandizable corn, proof of an agreement to deliver good corn of the second sort is not sufficient: (Anon. 12 W. III. 1 Raym. 735.) so where the agreement declared upon was to sell the plaintiff all his merchandizable skins, and the agreement produced by the plaintiff, and signed by the defendant was so, yet the agreement of the same date entered in the defendant's book, and signed by the plaintiff, being to sell all his merchandizable calf skins, the plaintiff was nousuited.-Anon, at Salop, 1744. The plaintiff declared upon a promise to pay so much money upon the plaintiff's transferring so much South Sea stock; at the trial the note produced appeared to be to pay on a transfer to the defendant or his order; and this was holden to be a variance, and the plaintiff nonsuited. (Rutland D. v. Hodgson, E. 22 Geo. III. per Raym. C.J. So where the contract declared on was to deliver stock on the 22d of August, and upon the trial the entry in the broker's book was a contract for the opening, though it was proved to be notorious that the books were to (a) In the bequest of a legacy, or of any personal thing, the assent of an executor is so necessary, that if the legatee take the thing without the delivery of the executor, he may have an action of trespass against him. Anon. Kielw. 128, pl. 94. 1 New Abr. 260; but in a devise of lands which are freehold, the assent is not required. Co. Lit. 111. If the executor docs once assent to the legacy, the legatee has such a property vested in him that he may take it, though the executor revokes his assent afterwards. Paramour v. Yardley, Plowd. 543. open open the 22d, and the broker swore he took the 22d of August, and the opening, to be convertible terms. (Payne v. Hayes, Stra. 74. Et vide S. C. ante, p. 128, n. (b) (a) But these seem rather to be cases founded on the times to get rid of South Sea contracts, than to be relied on as precedents in other cases. Consideration.-A mere voluntary curtesy will not have a consideration to uphold an assumpsit, but if such curtesy were moved by a request [*146] of the party, that gives an assumpsit; and therefore if the plaintiff *declare, that whereas the defendant hath feloniously slain 4. he required the plaintiff to labour and do his endeavour to obtain the king's pardon; whereupon the plaintiff did do his endeavour, viz. in riding, &c. and afterwards in consideration of the premises the defendant did promise to pay the plaintiff £100, it will be good: And note, in such case, if the plaintiff could prove no riding, yet any other effectual endeavours according to the request would serve; and if the consideration were future, that he would endeavour, so that the plaintiff must lay his endeavour expressly; and the defendant would not deny the promise, but the endea vour, he must traverse the endeavour in the general, and not the riding in special. And this leads me to take notice of a distinction between promises upon a consideration executed, and executory.-Lampleigh v, Braithwaite, M. 13 Jac. I. Hob. 105, Bosden y. Thynn, infra. (b) (a) As the plaintiff is bound to declare specially on a special agree ment, he ought to prove the contract expressly as laid. Anon. Ld. Raym. 735. Hockin v. Cooke, 4 T. Rep. 314. (b) If A. promise to do, or to abstain from doing, an act in consideration of the antecedent performance of some act or promise on the part of B. the promise of B. is called a dependant promise, because B.'s right of action for a breach of such proise depends on the prior performance (or that which is equivalent to performance) of the act or promise on the part of B. and the act or promise to be performed by B. being in nature of a condition precedent, is usually distinguished by this appellation, because the performance (or that which is equivalent to performance) of such act or promise precedes B.'s right of action to recover damages against 4. for non-perform In ance of his promise, and must be specially avowed in the declaration. Selw. N. P. Abr. 94. Vide etiam Raynay v. Alexander, Yelv. 76, and Thorpe v. Thorpe, Ld. Raym. 662, which is a leading case on this subject, and where Ld. Holt, after fully discussing the distinction between positive agreements and conditions precedent, observed, that in cases of conditions precedent, an action could not be maintained before perform ance, but in the case of positive agreements it was otherwise. The learned judge then laid down certain rules to which the reader is referred. See also Martin v. Smith, 6 East, 555. and St. Albans D. v. Shore, 1 H. Bla. 270, with the remarks of Ellenborough, C. J. and Lawrence, J. on Lord Loughborough's opinion in Martin v. Smith; also see Phillips v. Fielding, 2 H. Bla. 123. In all cases of conditions precedent a performance ought to be spe In the case of a consideration executed the defendant cannot traverse the consideration by itself, because it is incorporated and coupled with the promise, and if it were not then in deed acted, it is nudum pactum. (Bosden v. Thynn, M. 1603. Cro. Jac. 18.) But if it be executory, the plaintiff cannot bring his action till the consideration performed, and if in truth the promise were made, and the consideration not performed, the defendant must traverse the performance, and not the promise, because they are distinct in fact. And therefore the plaintiff, when he alledges performance, ought to alledge a place where; and if he do not, the defendant may demur for want of a venue.-Sexton v. Miles, 1 W. & M. Salk. 22. (a) If the consideration be illegal it will not uphold an assumpsit; as where the defendant in consideration of 20s. assumed to pay 40s. if he did not beat J. S. out of such a close. But the act to be done must appear unlawful at the time, otherwise the promise will not be void. (Allen v. Rescous, T. 28 Car. II. 2 Lev. 174.) As if A. bring B. to an inn, and affirming to the host that he has arrested B. by virtue of a commission of rebellion, in consideration that the host will keep B. as a prisoner for one night, promise to save him harmless; if B. recover against the host for false imprisonment, the host may have an action on that promise against 4. (Battersey's Case, M. 29 Jac. I. Winch, 48.) But where B. in consideration that the gaoler would permit A. his prisoner to go at large, promised the gaoler to pay the debt, and save him harmless, it was holden a void promise; vide to the same purpose, Webb v. Bishop, ante, and the cases there cited.-Martin v. Blytheman, H. 8 Jac. I. Yelv. 107. Et vide Cragge v. Norfolk, H. 26 & 27 Car. II. 2 Lev. 120. cially avowed, or what is equivalent, a tender and refusal, but the averment of a tender alone will not suffice. Lea v. Exelby, Cro. Eliz. 888. Furthermore, as to concurrent acts. Where two acts are agreed to be performed by each party at the same time one party cannot sue the other without avowing either performance of his part of the agreement, or what is equal to it. Morton v. Lamb, 7 T. Rep. 125, which case Lawrence, J. assimilated to Callonell v. Briggs, Salk. 112. But after verdict an averment that plaintiff was ready and willing to perform his part of the contract, has been holden sufficient. Rawson v. Johnson, 1 East, 203. Waterhouse v. Skinner, 2 Bos. & Pull. 447. So where something is to be performed by two at the same time, he who is ready and offers to perform his part, may sue the other for non-performance. Jones v. Barkeley, Dougl. 659. (684). con (a) A consideration altogether unexecuted is not good to maintain an assumpsit; as if A.'s servant be arrested in London for a trespass, and J. S. who knows 4. bails him, and after 4. for his friendship, promises to save him harmless, if J. S. should be charged, this will be no sideration to ground an assumpsit, because the bailing, which was the consideration, was past and executed. Hunt v. Bate, Dy. 272, 1 Rol. Abr. 11. Doggett v. Dowell, Owen, 144. But it would have been otherwise, if 4. had requested him to bail his servant, and the bailing had been after. Hunt v. Bate, sup. Where Where the action is brought upon mutual promises, it is necessary to [*147] shew they were both made at the same time, or else it will be nudum pactum; (Nichols v. Rainbred, H. 12 Jac. I. Hob. 88.) and though the promises be mutual, yet if one thing be in the consideration of the other, a performance is necessary to be averred, unless a certain day be appointed for it; (a) and therefore where A. had given B. a note for so much money six months after the bargain, B. transferring the stock, and B. at the same time had given a note to A. to transfer the stock, A. praying, &c. B. brought an action, and upon non-assumpsit, Holt, C. J. at Guildhall, obliged the plaintiff to prove either a transfer, or a tender and refusal, within the six months; and said that if A. had brought an action against B. for not transferring, he must have proved a payment or a tender.—Callonel v. Briggs, T. 2 Ann. Salk. 112. (b) (a) Where there are mutual promises, and the bare promise, and not the consideration, an action will lie by either party, without avowing part performance in himself. Lampleigh v. Braithwaite, Hob. 106. But Lawrence, J. in Glazebrook v. Wood'row, 8 T. Rep. 373, said this question depends upon, and must be gathered from the nature and words of the agreement. So in Martindale v. Fisher, 1 Wils. 88, it was held, that promise for promise is a good consideration, without an averment of the plaintiff's promise. Vide Brown v. Hancock, Cro. Car. 115. Wright v. Johnson, 1 Vent. 64. Pilchard v. Kingston, Cro. Car. 202. And in Glazebrook v. Woodrow, sup. Grose, J. said, the intention of the parties is or is assumed to be the governing principle of all the late determinations, and when the nature of the consideration is ascertained, the rules respecting the averments before laid down invariably hold. See also Mr. Serjeant Williams' notes to 1 Saund. 320 (n. 4.) and Mr. Durnford's notes to Willes Rep. 157. In Mountjord v. Horton, 2 Bos. & Pull. 62, the first count of a declaration in assumpsit stated an agreement between two persons, but omitted the mutual promises. On motion in arrest of judgment, it was held, that the agreement itself implied a promise. So in Starkey v. Cheeseman, Salk. 128, where a similar objection was taken to a count on a bill of exchange, and Holt, C. J. held, that the drawing of the bill was an actual promise, and in Lowther v. Conyers, cited 1 Stra. 224, the same doctrine applied to a count on a promissory note, where the promise was omitted. So in Roe v. Gatehouse, 2 Salk. 663, where the name of the defendant was omitted in the averment of the promise in the second count, the court held that the same nomination should go to all the promises, and therefore the declaration was well enough. But in Buckler v. Angill, 1 Lev. 164, where the declaration was, that in consideration that the plaintiff would surrender a term the defendant would pay £10, without stating any promise, the declaration was held bad; and the some doctrine prevailed in Lea v. Welsh, 2 Ld. Raym. 1517, upon a similar declaration, and in Law v. Saunders, Cro. Eliz. 913, where the name of the defendant was omitted in the statement of the promise, the declaration was held bad after verdict, there being no prior count by which the the omission could be helped. If a man and woman (being unmarried) mutually promise to intermarry, and afterwards the man marries another woman, assumpsit lies. Dickenson v. Holcroft, Carter, 233. So if the woman marries another man. Harrison v. Cage, Carth. 467. Where Where in an assumpsit two considerations are alledged, the one good and sufficient, the other idle and vain; if that which is good be proved it sufficeth; and although he fail in the proof of the other, it is not material, because it was in vain to alledge it; but if both be good, both must be proved.-Crisp v. Garnel, T. 1607. Cro. Jac. 127. Though the promise alledged be proved, yet if it appear to be made on a different consideration than is mentioned in the plaintiff's declaration, it is not sufficient, or if it were made on the consideration alledged, and some other thing beside.-Carter v. Toddard, M. 1587. Cro. Eliz. 79. Ex nudo pacto non oritur actio, and therefore if A. in consideration that B. will make an estate at will to him, promise to pay, it is a void promise, for B. may immediately determine his will.-Keble v. Tisdale, M. 12 Jac. I. 1 Rol. Abr. 23. (a) If in consideration of a thing already done, without my request, not for my benefit, and where I was under no moral obligation to do it, I promise to pay money, that is nudum pactum, and void. But if I were under a moral obligation to do a thing, and another person does it without my request, and I afterwards promise to pay, that is good. There fore where a pauper was suddenly taken ill, and an apothecary attended her without the previous request of the overseers, and cured her, and afterwards the overseers promised payment, it was holden good, for they were under a moral obligation to provide for the poor.-Watson v. Turner et al, Excheq. T. 7 Geo. III. In assumpsit the plaintiff declared, that he had delivered goods to the defendant, which he promised to dispose of and to give the plaintiff an account, &c. the defendant pleaded in abatement, that he was bailiff to the plaintiff to merchandize the said goods, and that he ought to bring account; and upon demurrer it was adjudged that here being an express promise* to account, assumpsit will lie as well as account, and that wherever [*148] one acts as my bailiff he promises to render an account. However upon that occasion, Holt, C. J. told the plaintiff, that when it came to be tried he would not suffer him to give all the account in evidence, or to enter into the particulars thereof, but that he should direct his proof only as to the damages which he had sustained for not accounting according to his promise. (Wilkin v. Wilkin, H. 1 W. & M. Carth, 89.) In such cases where indebitatus assumpsit is brought for money received ad computandum, it is necessary to prove a misapplication or breach of trust; for if (a) Where the doing a thing will be a good consideration, a promise to do that thing will be so too. Dict. Per Holt, C. J. in. Thorp v. Thorp, a man |