Osborne v Rogers, Executor of Weston
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 318
COURT OF KING'S BENCH
[264] 40. osborne versus rogers, executor of weston. Pasch. 21 Car. II. Regis, Rol. 109. Same entry. 1 Mod. Ent. 116. London, to wit.-Be it remembered that heretofore, to wit, in the term of St, Hilary last past before our lord the King at Westminster came Robert Osborne gent, by John Johnson his attorney, and brought here into the Court of our said lord the King then there his certain bill against George Rogers doctor of physic, executor of the last will and testament of William Weston gent, deceased, in the custody of the marshal, &c. of a plea of trespass upon the case ; and there are pledges of prosecution, to wit, John Doe and Richard Roe ; which said bill follows in these words, to wit; London, to wit, Robert Osborne gent, complains of George Rogers doctor of physic, executor of the last will and testament of William Weston gent, deceased, being in the custody of the marshal of the Marshalsea of our lord the King before the King himself: for that whereas the said Robert had served one John Weaver gent, for the space of three years next before the 21st day of March in the year of our Lord 1647, and in that service had gained the sum of 601. a-year; and the said Robert Osborne so being in the service of the said John Weaver afterwards, to wit, on the said 21st day of March in the year last aforesaid, at London aforesaid, to wit, in the parish of St. Dunstan in the West in the ward of Faringdon Without, a certain discourse was had and moved between the said William in his lifetime, and one Helen Osborne mother of the said Robert, of and concerning him the said Robert, and of and concerning the retaining of the said Robert in the service of the said William; whereupon he the said William in his lifetime, afterwards, to wit, on the same day and year at London aforesaid in the parish and ward aforesaid, in consideration that he the said Robert at the special instance and request (I) of the said William (1) These words are necessary to be laid in the declaration in order to support the action. It is held that a consideration executed and past, as in the present case,() the service performed by the plaintiff for the testator in his lifetime for several years then past, is not sufficient to maintain an assumpsit unless it was moved by a precedent request, and so laid.(a) For it is not reasonable that one man should do another a kindness, and then charge him with a recompense : this would be obliging him whether he would or not, and bringing him under an obligation without his con- (z) [This is a mistake; for it will be seen, on looking at the entry, that the consideration here is executory.] (a) [It is necessary to lay a precedent request in cases where the consideration was executed and bygone at the time of the promise, and in these cases only. 2 C. M. & R. 49, King v. Sears. 3 Bing. N. C. 710, Tipper v. Bicknell. 4 Scott, 462, S. C. 1 Mann. & Gr. 166, Thornton v. Jenyns. 1 Scott, N. R. 52, S. C. And even in these cases it is not necessary, if the Act stated as the consideration cannot, from its nature, have been gratuitous, but imports an obligation to pay; as in the common count for money lent, or goods sold and delivered. 1 Mann. & Gr. 266, note. 1 Dowl. & L. 984, Victors v. Davis. But the same doctrine will not apply to the count for money paid; because no man can be a debtor for money paid, unless it was paid at his request.-A past consideration, from which the law implies a promise, is not, generally speaking, sufficient to maintain any other promise than that which the law implies. 5 M. & W. 241, Hopkins v. Logan. 8 M. & W. 790, Jackson v. Cobbin. 6 M. & W. 458, Granger v. Collins. 3 Q. B. 234, Soscorla v. Thomas. 2 G. & D. 508, S. C. C. P. T. T. 1844. Kay v. Button (not yet reported).] 1 WM1. BAUinx JM. TRIN. 22 CAR. II. REGIS 319 would serve the said William, and bestow his care and labour in and about the business of him the said William, undertook and then and there faithfully currence.(J) Therefore, where A.'s servant was arrested in London for a trespass, and J. S., who knew A., bailed him, and afterwards A., for his friendship, promised to save him harmless, and J. S. comes to be charged; yet it is: held that this is no consideration to ground an assumpsit, because the bailing, which was the consideration, was past and executed before.(c) But it had been otherwise if the master had previously requested him to become bail for his servant; Dyer, 272 a. Hunt v. Bate. 1 Rol. Abr. 11 (Q.), pi. 2, 3.; because the promise is not a naked one, but couples itself with the precedent request, and with the merits of the party, which were procured by that request, and is therefore founded upon a good consideration. Hob. 106, Lampkigh v. BraUhwaite. I Rol. Abr. 11 (Q.), pi. 5, 6, S. P. Cro Jac. 18, Bosden v. Thinn. But where a party derives benefit from the consideration it is sufficient, because equivalent to a previous request; as where a man pays a sum of money, or buys any goods for me without my knowledge or request, and afterwards I agree to the payment, or receive the goods, this is equivalent to a previous request to do so; but it is still necessary to aver in the declaration, that it was money paid and laid out for me at my special instance and request, and my subsequent conduct will be evidence of it. So where assumpsit was for work and labour done by the plaintiff for the defendant, in consideration whereof he promised to pay; after judgment by default and error brought, it was objected that this was a past consideration, and not being laid to be done at the defendant's request, it could be no consideration to raise an aaumpsit. The Court said, they took the rule of law to be, that a past consideration is not sufficient to support a subsequent promise, unless there was a request of tha party, either express or implied, at the time of performing the consideration ; but where there was an express request at the time, it would in all cases be sufficient to support a subsequent promise; and however the declaration might be sufficient after a verdict, yet it was not so after a judgment by default, and the judgment was reversed. 2 Str. 933, Hayes v. Warren, S. C. 2 Barnard. Rep. K. B. 55, 71, 140. See ante, 228, note. And though proof of a precedent request, in most cases, necessarily arises out of the circumstances of the transaction, yet it is sometimes necessary to prove the request by express evidence. As where tenant from year to year of a house, at a yearly rent, became a bankrupt in the middle of the year, and his assignees entered and kept possession for the remainder of the year, it was held that the landlord could not maintain an action for use and occupation against the assignees, for the bankrupt's occupation as well as their own, without proving their request for the bankrupt to occupy during the time that elapsed before the bankruptcy. 2 H. Black. 319, Naish v. Tatlock.(d) So where a person pays money to another upon my account without my request, assumpsit will not lie without an express promise to repay it; for I may have a good reason to resist the payment of the money, and another person shall not pay it for me, whether I will or not. 1 T. R. 20, Stokes v. Lems.(e) (b) So even an affidavit (to hold to bail) of debt for money lent, and for goods sold and delivered, and for work and labour, has been held irregular, because it omitted to state that it was "at the instance and request of the defendant," although it stated that it was "to and for his use, and on his behalf." 5 M. & S. 446, Durnford v. Messiter. [But see 1 Bing. 338, Berry v. Fernandes. 8 Moore, 332, S. C. contra. See also Victors v. Davis, supra, n. (a).] (c) But if it had been laid to have been done at the defendant's request, it should seem that defendant's receiving the servant again, and taking the benefit of his service, would have been sufficient evidence of such request. (d) The case of Richardson v. Hall, 1 Brod. & Bing. 50, was determined on the same principle, it being there held that a husband is not liable to be sued alone for the use and occupation of a house by his wife dum sola, as it cannot be said that she occupied at his request. (e) It should seem that an express promise is not necessary in such a case, and that where it has been made, the action is not sustainable on account of the promise considered as a promise, but on account of its amounting to a subsequent assent, 320 OSBORNE V. ROGERS 1WM8. SAUND. 248. promised the said Robert, that he the aaid William would receive the said Robert into his the said William's service, and would look upon him the said Robert as his own son, and would very amply provide for him the said Robert. And the said Robert in fact says, that he the said Robert, confiding in the said promise and undertaking of the said William in form aforesaid made, afterwards, to wit, on the day and year aforesaid, at London aforesaid in the parish and ward aforesaid, went into the service of the said William, and, at London aforesaid in the parish and ward aforesaid, served the said William from thence [265] until the first day of November in the 16th year of the reign of our Lord Charles the Second now King of England, and during all the said time bestowed his labour and care in and about the business of the said William with the greatest diligence, without any reward or salary therefore given to him by the said William, and that the said William afterwards, to wit, on the 9th day of December in the 18th year of the reign of our said lord the now King, at London aforesaid in the parish and ward aforesaid, died intestate,(2) and possessed of (2) Hence it appears, that the defendant was executor de son tort; for it is stated that Weston died intestate, and consequently the defendant could not be a rightful executor; not that it was at all necessary, nor is it usual, to state in the...
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