Eastwood against Kenyon
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1840 |
| Date | 01 January 1840 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 482
IN THE COURT OF QUEEN'S BENCH.
S. C. 3 P. & D. 276; 9 L. J. Q. B. 409; 4 Jur. 1081. Approved and adopted, Leaf v. Tuton, 1842, 10 Mee. & W. 398. Hargreaves v. Parsons, 1844, 13 Mee. & W. 570. Followed, Reader v. Kingham, 1862, 13 C. B. N. S. 353. Approved, Crippo v. Hartnoll, 1863, 4 B. & S. 420. Adopted, Guild v. Conrad, [1894] 2 Q. B. 893.
438] eastwood against kenyon. 1840. Defendant may shew, under non asaumpsit, that the promise was within stat. 29 Car. 2, c. 3, a. 4, and was not in writing. Section 4 of that statute, as to promises to pay the debt of another, contemplates only promises made to the person to whom another is liable; therefore a promise by defendant to plaintiff to pay A. B, a debt due from plaintiff to A. B. is not within the statute. A pecuniary benefit, voluntarily conferred by plaintiff and accepted by defendant, is not such a consideration as will support an action of assumpsit on a subsequent express promise by defendant to reimburse plaintiff. Therefore, where the declaration in assumpsit stated that plaintiff was executor of the father of defendant's wife, who died intestate as to his land, leaving defendant's wife, an infant, his only child and heir; that plaintiff acted as her guardian and agent during infancy, and in that capacity expended money on her maintenance and education, in the management and improvement of the land, and in paying the interest of a mortgage on it; that the estate was benefited thereby to the full amount of such expenditure; that plaintiff, being unable to repay himself out of the personal assets, borrowed money of A. B. on his promissory note; that defendant's wife, when of age and before marriage, assented to the loan and the note, and requested plaintiff to give up the management of the property to her, and promised to pay the note, and did in fact pay one year's interest on it; that plaintiff thereupon gave up the management accordingly; that defendant, after his marriage, assented to the plaintiffs accounts, and upon such accounting a certain sum was found due to plaintiff for monies so spent and borrowed ; that defendant, in right of his wife, received all the benefit of plaintiff's said services and expenditure, and thereupon in consideration of the premises, promised plaintiff to pay and discharge the note : Held, on motion in arrest of judgment, that the declaration was bad as not disclosing a sufficient consideration for defendant's promise. [S. C. 3 P. & D. 276 ; 9 L. J. Q. B. 409 ; 4 Jur. 1081. Approved and adopted, Leaf v. Tutvn,, 1842, 10 Mee. & W. 398. Hargreaves v. Parsons, 1844, 13 Mee. & W. 570. Followed, Reader v. Kingham, 1862, 13 C. B. N. S. 353. Approved, Crippo v. Hartnoll, 1863, 4 B. & S. 420. Adopted, Guild v. Cmirad, [1894] 2 Q. B. 893.] Assumpsit. The declaration stated, that one John Sutcliffe made his will, and appointed plaintiff executor thereof, and thereby bequeathed certain property in manner therein mentioned : that he afterwards died without altering his will, leaving one Sarah Sutcliffe, an infant, hia daughter and only child and heiress at law surviving : that after making the will John Sutcliffe sold the property mentioned therein, and purchased a piece of land upon which he erected certain cottages, but the same were not completed at the time of his death ; which piece of land and cottages were at the time of his death, mortgaged by him ; that he died intestate in respect of the same, whereupon the equity of redemption descended to the said infant as heiress at law : that after the death of John Sutcliffe, plaintiff duly proved the will and administered to the estate of the deceased : that from and after the death of John Sutcliffe until the said Sarah Sutcliffe came of full age, [439] plaintiff, executor as aforesaid, "acted as the guardian and agent" of the said infant, and in that capacity expended large sums of money in and about her maintenance and education, and in and about the completion, management, and necessary improvement of the said cottages and premises in which the said Sarah Sutcliffe was so interested, and in paying the interest of the mortgage money chargeable thereon and otherwise relative thereto, the said expenditure having been made in a prudent and useful manner, and having been beneficial to the interest of the said Sarah Sutcliffe to the full amount thereof: that the estate of John Sutcliffe deceased having been insufficient to allow plaintiff to make the said payments out of it, plaintiff was obliged to advance out of his own monies, and did advance, a large sum, to wit 1401., for the purpose of the said expenditure; and, in order to reimburse himself, was obliged to borrow, and did 11AD.&E.440. EASTWOOD V. KEN YON 483 borrow, the laid sum of one A. Blackburn, and, as a security, made his promissory note for payment thereof to the said A. Blackburn or his order on demand with interest; which sum, so secured by the said promissory note, was at the time of the making thereof and still is wholly due and unpaid to the said A. Blackburn : that the said sum was expended by plaintiff in manner aforesaid for the benefit of the said Sarah Sutcliffe, who received all the benefit and advantage thereof, and such expenditure was useful and beneficial to her to the full amount thereof: that when the said Sarah Sutcliffe came of full age she had notice of the premises, and then assented to the loan ao raised by plaintiff, and the security so given by him, and requested plaintiff to give up to one J. Stansfield as her agent, the controul and management of the [440] said property, and then promised the plaintiff to pay and discharge the amount of the said note ; and thereupon caused one year's interest upon the said sum of 1401. to be paid to A. Blackburn. That thereupon plaintiff agreed to give up, and did then give up, the controul and...
To continue reading
Request your trial
-
Premium Finance Ltd v John Morgan
... ... hereinafter called "C.J.'s" a Winding Up Order against the said "C.J.'s." In consequence of the Winding Up Order the Trustee in Bankruptcy was appointed ... That circumstance places the transaction within the Statute of Frauds. The case of Eastwood v Keynon (1840) 11 Ad and Ell 438; [1835-42] All E. Reports 133 is authority on point. The quoted ... ...
-
Wilson v Marshall
...7 Exch. 48. French v. FrenchUNK 2 M. & G. 644. Brooks v. Bockett 9 Q. B. 847. Harrison v. Turner 10 Q. B. 482. Eastwood v. KenyonENR 11 Ad. & E. 438. Lord Falmouth v. ThomasENR 1 Cr. & M. 89. Mallet v. BatemanELR Law Rep. 1 C. P. 163. Cocking v. WardENR 1 C. B. 858. Forth v. StantonENR 1 Wm......
-
Forth and Others v Stanton, Widow
...objection that there was no memorandum or note in writing, &c. of the contract to satisfy the statute. 5 M. & W. 456, BiMemere v. Hayes. 11 A. & E. 438, Eastwood v. Kenyan. 3 P. & D. 276, S. C. And a plea setting up this defence specially is bad on special demurrer, as being nothing but an ......
-
Barber v Fox
...obligation, on which it is founded, never could have been enforced at law, though not barred by any legal maxim or statute provision." 11 A. & E. 438, 447, Eastwood v. Kenyon. 3 P. & D. 276, S. C. The case above cited of Lee v. Muggeridge is decidedly at variance with this doctrine, and its......
-
Consideration and Form
..., 108 the defendant, having feloniously slain a third party, had requested the plaintiff to do what he 103 (1840), 11 Ad & El 438, 113 ER 482 (QB) [ Kenyon ]. 104 Ibid at 487 (ER). See also Grant v Von Alvensleben (1913), 4 WWR 1303 (BCCA); Johnson v Forbes , [1932] 1 DLR 219 (Alta SCAD); R......
-
ENVISIONING THE JUDICIAL ABOLITION OF THE DOCTRINE OF CONSIDERATION IN SINGAPORE
...Mass 15 (1901). 42 H G Beale ed, Chitty on Contracts (London: Sweet & Maxwell, 30th Ed, 2008) at para 3-032. See Eastwood v Kenyon (1840) 11 A & E 438. 43 [1980] AC 614. 44 The three conditions are: (a) the act must have been done at the promisor‘s request; (b) the parties understood that t......
-
Case Note
...Bennett(1839) 41 ER 105 at 107. 29Dent v Bennett(1839) 41 ER 105 at 107. 30Dent v Bennett(1839) 41 ER 105 at 108. 31(1839) 41 ER 105. 32(1840) 113 ER 482. 33 3 B & P 249. 34Eastwood v Kenyon(1840) 113 ER 482 at 485. 35Eastwood v Kenyon(1840) 113 ER 482 at 485. 36Eastwood v Kenyon(1840) 113 ......