pass upon which any defendant shall be found guilty was "wilful and malicious, the plaintiff shall recover not only "his damages but full costs." Of the Certificate under the 43 Eliz. to deprive the Plaintiff of Costs. The preceding statutes enable plaintiff's, by means of the judge's certificate, to recover full costs; it remains only to mention the 43d Eliz. c. 6. s. 2. which empowers judges in all personal actions, not therein excepted, to deprive plaintiffs, by means of a certificate, which may be granted under certain circumstances, of the benefit of full costs. The provisions of this statute are as follow: "If upon "any action personal, brought in any of the king's courts "at Westminster, not being for any title or interest of lands, "(16) nor concerning the freehold or inheritance of any "lands, nor for any battery, it shall appear to the judges "for the same court, and so signified or set down by the "justices before whom the same shall be tried, that the "debt or damages to be recovered therein shall not amount "to the sum of forty shillings or above, the judges before "whom any such action shall be pursued shall not award "for costs to the plaintiff any greater costs than the amount "of the debt or damages recovered, but less at their dis"cretion." In trespass for an assault and taking a rope, the jury gave eighteen-pence damages. And Mr. Justice Burnet, who tried the cause, certified according to st. 43 Eliz. c. 6. in order to deprive plaintiff of costs. The plaintiff however moved (as it was a new case) for costs de incremento, pretending that here was an asportavit, which, on the 22 & 23 Čar. 2. c. 9. had been always holden to carry costs. But the court in this case refused to give costs, for the st. 43 Eliz. takes in all but a few excepted cases, of which this is not one. "And c 43 Eliz. c. 6. s. 2. d Walker v. Robinson, Str. 1232, and 1 Wils. 93. (16) An action on the case, for a disturbance of or injury to the plaintiff's right of common, is not necessarily an action for any ti tle or interest of lands; it may be brought in order to assert such title, or a right to such interest; or it may be brought against a mere wrong-doer, when the plaintiff's title to common is not disputed; or against another commoner, where there is no question on the right of either party: in the two last cases it is within the statute, and the judge may certify. Edmonson v. Edmonson, 8 East, 294. 66 though it has not been usual to grant a certificate on this "act, yet we have often known it threatened (17).” It has been holden, that a certificate upon this statute may be granted after the trial of the cause, the time for granting it not having been fixed by the statute. e Holland v. Gore, C. B. T. 32 Geo. 2. Sayer on Costs, 19. (17) In White v. Smith, C. B. E. 17 Geo. 2. Willes, C. J. in an action for taking sand on Hounslow Heath, certified under this statute. A similar certificate was granted in Bartlet v. Robbins, C. B. E. 5 Geo. 3. in an action of assumpsit, and by Kenyon, C. J. in Dand v. Sexton, H. 29 Geo. 3. 3 T. R. 37. in an action of trespass vi et armis for beating a dog, although it was urged that the statute applied to those actions only which could be brought in the county court, and that consequently it did not extend to an action vi et armis. The Court of King's Bench concurred in opinion with Kenyon C. J. as to the propriety of granting this certificate, on the authority of the preceding cases. In Emmet v. Lyne, E. 45 G. 3. 1 N. R. 255. Sir J. Mansfield C. J. certified under this statute, in an action for false imprisonment; the court were of opinion, that the certificate was rightly granted, because an imprisonment did not necessarily include a battery. In Edmonson v. Edmonson, Carlisle Summ. Ass. 1806, Sutton, baron, certified in an action on the case for an injury done to the plaintiff's right of common by digging turves there; and the Court of King's Bench held, that the certificate was proper. See 8 East, 294. and ante, n. 16. CHA P. IV. OF THE ACTION OF ASSUMPSIT. I. Of the Action of Assumpsit, and of the Agreement, for the Non-performance of which this Action may be maintained. II. Of the general Indebitatus Assumpsit. III. Of the Declaration. IV. Of the Pleadings, 1. Of the General Issue, and what may be given in Evidence under it. 2. Accord and Satisfaction. 3. Infancy. 4. Payment. 6. Statules, 1. Of Limitation. 2. Of Set-off. 7. Tender. I. Of the Action of Assumpsit, and of the Agreement, for the Non-performance of which this Action may be maintained. DEFINITION.-The action of assumpsit is an action of trespass on the case, whereby a compensation, in damages, may be recovered for an injury sustained by the non-performance of a parol agreement. Agreements are distinguished, into agreements by spe cialty, and agreements by parol. The law of England does not recognize any other distinction. If agreements are merely written, and not specialties, they are parol agree ments". The action of assumpsit is confined to agreements by parol, the action of covenant or debt being the proper remedy for the non-performance of agreements by specialty. The essential parts of every parol agreement are, the promise or undertaking of one party, and the consideration on which such promise or undertaking is founded, proceeding from the other party. Sometimes the promise is expressed by the party, and sometimes it is raised by implication of law. In the former case, it is termed an express, in the latter, an implied promise. In parol agreements, the law will not imply a consideration; consequently, in actions of assumpsit, a consideration must be stated and proved (1). Of the Consideration.-Every promise, for the non-performance of which an action of assumpsit may be maintained, must be founded on a sufficient consideration (2), that is, a consideration either of benefit to the defendant, or of benefit to a stranger, or of damage, or of loss sustained by a Per Skynner, C. B. delivering the opinion of the judges in Rann v. Hughes, D. P. 14 May, 1778, 7 T. R. 351. n. b Bennus v. Guyldley, Cro. Jac. 505. e Per Buller, J. in Nerot v. Wallace, 3 T. R. 24. and Cooke v. Oxley, 3 T. d Per Gawdy and Fenner, Js. in Green. e Per Ellenborough, C. J. in Bunn v. Guy, 4 East's R. 194. (1) Bills of exchange and promissory notes form an exception to this rule. (2) It is worthy of observation, that Sir William Blackstone, in that part of the third volume of his Commentaries, wherein he treats of the action of assumpsit, has not either named, described, or even alluded to the consideration requisite to support an assumpsit and what is more remarkable, the example put by him in order to illustrate the nature of the action is, in the terms in which it is there stated, a case of nudum pactum: "If a builder promises, undertakes, or assumes to Caius, that he will build and cover his house within a time limited, and fails to do it, Caius has an action on the case against the builder for this breach of his express promise, undertaking, or assumpsit." See 1 Roll. Abr. 9. 1. 41. Doct. and Stud. Dial. 2. ch. 24, and Elsee v. Gatward, 5 T. R. 143. that an action will not lie for a mere nonfeasance, unless the promise is founded on a consideration. This remark ought not, neither was it intended, to derogate from the merit of a justly celebrated writer, who for comprehensive design, luminous arrangement, and 2. the plaintiff, at the request of the defendant: and herein the law of England adopts and recognizes the rule of the civil law, ex nudo pacto non oritur actiof. Any act of the plaintiff, from which the defendant derives a benefit or advantage, or any labour, detriments, or inconvenience sustained by the plaintiff, however small the benefit or inconvenience may be, is a sufficient consideration, if such act is performed, or such inconvenience suffered by the plaintiff, with the consent', either express or implied, of the defendant, or in the language of pleading, "at the special instance and request of the defendant." It is, however, clearly established, that the consideration must be of some value, in contemplation of law (3); for where A. in consideration that B. would make an estate at will to him, as his counsel should devise, promised, &c. it was holden a void promise, for want of a sufficient consideration, because B. might immediately determine his will *. So where the testator had committed to the care of the defendant his children', and the disposition of his goods, during their minority, for their education, and thereupon the defendant promised the testator to procure the assurance of certain lands to one of the testator's children, the consideration was holden insufficient; for the law would not in f 17 E. 4. 4 b. Plowd. 305 a. 308 b. 523. Taunt. h Sturlyn v. Albany, Cro. Eliz. 67. i Stokes v. Lewis, 1 T. R. 21. Child v. Morley, s T. R. 610. k 1 Roll Abr. 23. pl. 29. 1 Smith v. Smith, 3 Leon. 88. elegance of diction, is unrivalled. It is possible, that the learned commentator might have selected his example from Bro. Abr. tit. Action sur le Case, 72. without adverting to the omission of the consideration. (3) The case of Wheatly v. Law, Cro. Jac. 667. (recognized by Holt C. J. in Coggs v. Bernard, Lord Raym. 920.) in which it was adjudged, that the acceptance of a sum of money by the defendant from the plaintiff, for the purpose of paying it over to a cre ditor of the plaintiff, was a sufficient consideration to support a promise by the defendant to perform the trust, may appear an exception to this rule. The exception, however, is only apparent; for, from the report of the same case in Palm. 281, under the name of Loe's case, it is evident, that the Chief Justice considered the detention of the money as a damage to the plaintiff. Whether the application of the rule was just in that case, is another question. It is clear, however, that the rule itself was recognized by the court. |