Morton against Burn and Vaux
| Jurisdiction | England & Wales |
| Judgment Date | 25 May 1837 |
| Date | 25 May 1837 |
| Court | Court of the King's Bench |
English Reports Citation: 112 E.R. 378
IN THE COURT OF KING'S BENCH
[19] morton against burn and vaux. Thursday, May 25th, 1837. Declaration, in assumpsit, stated that defendant was indebted to plaintiff in a sura named, under and by virtue of a bond, and of an indenture and deed of assignment thereof; that, according to the condition of the bond, a certain part of that sum ought to have been paid on a certain day then past; and that, in consideration of the premises, and that plaintiff would accept payment of the whole on certain future days, and give time to the defendant in the meanwhile, the defendant promised to pay the sum then due on a day named, or in default of so doing to give plaintiff a warrant of attorney for that sum ; and that he would pay the remainder on the days named, and, in default of so doing, would execute a warrant of attorney for such remainder, or so much as might be due : averment, that plaintiff did forbear; breach, that defendant did not pay, nor execute a warrant of attorney. On motion in arrest of judgment, held, that the declaration shewed a good consideration. Assumpsit. The first count of the declaration stated that, whereas, before and at the time of making the promise, &c., to wit 12th April 1834, the defendants were indebted to the plaintiff in 7281. 2s. 6d., and interest thereon from 1st February 1834, under and by virtue of a bond, dated 14th July 1832, and a certain indenture and deed of assignment thereof, dated 19th October 1833, and that, according to the condition of the said bond, 2281. 2s. 6d., part of the said sum of 7281. 2s. 6d., ought to have been paid on the 1st February then last past, and thereupon, in consideration of the premises, and also in consideration that plaintiff would accept and receive payment of the said sums of money on the days and times after mentioned, and, in the meantime, give time to defendants for payment, the defendants undertook, &c. that the whole of the said 2281. 2s. 6d., with interest from 1st February 1834, should be paid to plaintiff on or before 1st of June then next, or, in default thereof, that defendants would sign a warrant of attorney to plaintiff to enter up judgment against them forthwith for the same; and that defendants would pay to plaintiff 501. quarterly, on 1st September, &c., in every year, until the further sura of 5001. (residue of the said 7281. 2s. 6d.), with interest at 51. per cent, per annum, should be [20] fully paid and satisfied ; and, in default of paying any of the last-mentioned instalments, defendants would execute a warrant of attorney to plaintiff forthwith to enter up judgment against them for the whole 5001. and interest, or so much thereof as might then remain due : averment that plaintiff did forbear and give time to defendants for the payment of the said 7281. 2s. 6d., and interest, until and upon the respective days and times mentioned for payment thereof in the said promise and undertaking of the defendants ; and, although defendants paid plaintiff the said 2281. 2s. 6d. and (a) Williams J. waa absent. See p. 14, ante. 7AD.*B.a. MORTON V. BURN 379 interest thereon, yet they did not nor would...
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...promise by the executor is a mere nudum pactum, if there were no assets. 5 T. R. 8, Pearson v. Henry. 1 T. R. 350, note (a), liann v. (a) [7 A. & E. 19, Morton- v. Burn. 2 N. & P. 297, S. C. accord.] Although a chose in action cannot be assigned in law, yet it may in equity; and the forbear......
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...furnish goods to C., I will guarantee the payment; there B. is not bound to furnish them; yet if he does, he may sue on the guarantee. 7 A. & E. 19, 23, Morton v. Burn. 2 N. & P. 297, S. C. 5 M. & W. 498, 501, Kennawwy v. Treleavan. Again, in the case of a contract entered into with a corpo......
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