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LAMPLEIOH V. BRATHWAIT

129. LANPLEIGH

2re7'flCs

BRATHWAIT.

Mich. 1 3 Jac. Rot. 713.

[S. C. 1 Sm. L. C. 11th ed. 141. See Barendale v. London, C'hatham & Dovei Baihvay, 1874, L. R. 10 Ex. 42 ; Edniunds v. Wallingjwd, 1885, 14 Q. B. D. 814 ; Blyth v. Fliiclglgnte [1891], 1 Ch. 358; In re C'asey's Patents [1892], 1 Ch. 115; Bonnnar v. l'oltenham, &c., Building Society [1899], 1 Q. B. 167 ; l'olhumt v. Associated Pwtlrcnd Cenient Cmpnny [1903], 2 &. B. 668; [1903], A. C. 414.1 Assumpsit.

London.

Assumpsit arid of consideration generally Moo. 866. Mesme. 2 Keeb. 666. p. 28.

Brownl. 7 .

Aothony Lampleigh brought an assumpsit agaiust Thomas Brathwait and declared, that whereas the defendant had feloniously slain oiie Patrick Mahume, the defendant after the said felony done, instantly required the plaintiff to labour, arid do his erideavour t o obtain his pardon from the King : whereupori the plaintiff upon the same request did, by all the means he could and many days labour, do his erideavour to obtain the King's pardon for the said felony, viz. in riding and journeying a t his own charges from London to Roiston, when the King was there, and t o London back, arid so to and from New-market, to obtain pardon for the defendant for the said felony. Afterwards, scil. &e. in consideration of the [lOS] premisses, the said deferidant did promise the said plaintiff to give him 100 pourids, and that he had not &c. to his damage 120 pounds. To this the defendant pleaded non assumpsit, and found for the plaintiff damage one hundred pounds. It was said i i i arrest of judgment, that the corisideratiori was passed. But the chief ohjection was, that i t doth not appear, that be 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 arid the other two Judges were of opinion for the plaintiff, and so he had judgment. First, if was agreed, that a meer voluntary curtesie will not have a cotisideration 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 i t follows, yet it is not naked, but couples i t self with the suit before, arid the merits of the party procured by that suit, which i R the difference. Pasch. 10 Eliz. Dyer 272. Hunt and Bates. See Ondey's ease, 19 Eliz. Dyer 355. 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. 1. That the defendant had committed the felony, prout, ckc. 2. Then that he requested the plaintiff's erideavour, prout, &c. 3. That whereupori the defendant made his proof, prout, &c. 4. That thereupon the defendant made his promise, prout, &c. For wheresoever I build my promise upon a thing doiie a t my request, the execution of the act must pursue the request, for i t is like a case of commission for this purpose. So then the issue found u t supra is a proof that he did his emdeavour, according to the request, for else the issue could riot have been found, for that is the differeiice between a promise upon a consideration executed and executory, that iti the executed you cannot traverse the consideratiori by it self, because i t is passed arid incorporated and coupled with the promise. Arid if i t were riot indeed then acted, it is riuridum pactnm. But if i t be executory, as in consideration, that you shall serve me a year, I will give you ten pounds ; here you caiinot bring your action 'till the service performed. But d i t were a promise on either side executory, i t needs not to aver performaiice, for it is the counter-promise, and riot the performarice, that makes the consideratiori ; yet i t is a promise before, though riot biuding, arid in the action, you shall lay the promise as i t was, and make special avermerit of the service done after.