The Practice in Courts of Justice in England and the United States - Conway Robinson - Google Books

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2. Where creditor assigns, and debtor promises to pay assignee,

3. Where a bond or note is sold and delivered, but no promise

made to the purchaser, nor any written assignment made to

him, what are his rights,

5. How assignment may be made by writing,

6. At common law assignee had no right to sue in his own name,

7. Change made in Pennsylvania by the act of 1715,

8. State of things in Virginia before the statutes respecting as-

signments. Effect of those statutes as it regards the assig

nee's right to sue,

9. Right of assignee to sue under South Carolina statute,

10. Statute of Alabama similar to that of Virginia,

11. Extent to which legal title to the instrument, and legal right

of action, passes to the assignee in Kentucky,

12. Extent to which Maryland act gives a right of action to assig-

nee,

13. In Virginia, Kentucky, Maryland and Alabama, such defence

as obligor had against obligee at the time of notice of assign-

ment, may be set up against assignee,

14. In North Carolina, bonds are put on a footing peculiar to that

state. They are made negotiable. Effect thereof,

20. The rule of Marsh v. Brooks, 10 Iredell 410, important to be

considered in a state wherein bonds are not negotiable,

CHAP. 27.-In Virginia and other states, right of action.

of assignee against assignor of an instrument

not negotiable,

1. In North Carolina assignment of a bond makes assignor as

much liable as if he had endorsed, and indeed as if he had

made, a negotiable note,

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3. Statute of Maryland gives assignee right of action against as-

4. How right of action against assignor has been established in

Virginia and Kentucky,

5. Right of action rests on the ground of there being a valuable

consideration for the assignment,

6. How far consideration paid for the assignment is the measure

of recovery against assignor,

7. How contract of assignment may be modified. If the assign-

ment be of a bond or note, on which nothing is due, how far

assignor is liable,

8. If the obligor or maker fail to pay, under what circumstances

assignee's want of diligence, or failure to sue, will not affect

right of action against assignor,

9. Generally, assignee must sue obligor or maker in a reasonable

10. Suit against obligor or maker must be in the proper place,

11. Suit brought against obligor or maker must be diligently pro-

12. After judgment there must be due diligence in issuing execu-

tion to the proper county,

13. If execution be levied on property, due diligence must be used

to obtain the value of that property,

14. If there be a return of nulla bona, that generally authorizes

assignee to sue assignor,

15. Effect of taking the debtor under a ca. sa.,

16. An assignee who has a lien on the debtor's property, by deed

or otherwise, should pursue it before he proceeds against

18. Rule in Pennsylvania and New York as to right of action on

assignor's contract of guaranty,

19. Whether assignor or guarantor is liable to any other than the

party with whom he contracted. Rule in equity. Effect

of statute of Virginia,

CHAP. 28.-Action on a promise to guaranty,

1. Between whom the contract of guaranty is,

2. Consideration to support the guaranty,

3. Rules for construing a guaranty,

4. Endorser not to be turned into maker or guarantor; and

guarantor not to be turned into maker or endorser,

5. Of guaranties in respect to the business, goods, time, amount

6. Whether there must be notice of acceptance of guaranty to

make it absolute,

7. Within what time notice must be given of the acceptance of

guaranty; and of the amount for which guarantor is held

8. Necessary there should be a demand on principal, and on his

refusal notice to guarantor. Consequence of not giving it,

9. Where default in paying negotiable paper, rule as to notice to

a person who is not a party to it,

10. Whether on guaranty action will lie for a person not a party

CHAP. 29.-Action on a promise to indemnify,

1. As to consideration for promise; and legality of act against

which indemnity is given,

2. How far material to give notice to indemnifier,

3. Whether judgment against plaintiff authorizes him, before

paying it, to sue indemnifier,

4. What expenses may be recovered from indemnifier,

5. Insurance of buildings against loss by fire is in effect a con-

tract of indemnity,

RIGHT OF ACTION ON PROMISES GENERALLY; EXPRESS AND

CHAP. 30.-Consideration required to support a promise, 304

1. General rule as to necessity of consideration,

2. What consideration is insufficient; what is sufficient,

3. Past consideration not sufficient unless benefit was conferred

at defendant's request,

4. Rule in Lord Mansfield's time as to moral obligation being a

sufficient consideration,

5. Lord Mansfield's decisions remarked on by Lord Denman,

6. View of Tindal, C. J., on the question whether an executed

consideration will support a promise, although express, other

than that which the law itself would have implied,

7. Effect of a promise by a bankrupt to pay a debt from which

he was discharged. Conclusion as to how far such, or any

other, promise can be supported by a consideration from

which the law could not imply a promise,

8. Whether past cohabitation is a sufficient consideration for a

promise. Action may be maintained on promise to pay for

support of child, if not for board of mother,

9. If consideration be legal, court may decline enquiring into its

adequacy. Meaning of the rule that there must be adequate

consideration for agreement in restraint of trade,

10. Under what circumstances a game or wager was or was not

valid at common law. Changes made by statute. Rule in

cases of insurance as to assured having an insurable interest.

How far a life insurance is deemed a wager policy,

11. Thing to be done must be legal. Court will not enforce con-

tract forbidden by the common or statute law,

12. Cases in which it was considered the statute did not mean to

prohibit the contract,

13. Distinction taken in Faikney v. Reynous, 4 Burr. 2069, and

Petrie v. Hannah, 3 T. R. 418, between mala in se and mala

prohibita is now exploded. The repayment of money lent

to accomplish an illegal object cannot be enforced,

CHAP. 31.-What is generally necessary to fix liability

on a promise, express or implied. How con-

tract may be made by an agent or through

1. Defendant must have contracted expressly or impliedly,

2. If contract is not by defendant personally, it must be by a

person authorized to bind him. General rule as to agent's

3. General rule as to agency applied in the particular instance of

4. Rule as to agency when a man's wife has contracted; or he

has allowed supplies to any other female,

5. Rule as to agency in the case of a private company or of a

club or committee,

6. Distinction between a binding engagement and an unaccepted

proposal. How contract may be completed by the post.

From what time bargain is closed by acceptance of offer,

CHAP. 32.-Action for breach of a promise to marry;

or for things furnished to a wife and child,

1. For breach of promise to marry,

2. Marriage gives wife a right to be supplied with necessaries,

notwithstanding husband become insane,

3. How far husband is liable on his wife's contracts, when they

are living together,

4. How far husband is liable for supplies to wife during his tem-

porary absence,

5. Husband not liable for supplies to wife living apart from him

without his consent,

6. When wife is living apart from husband, with his consent, how

his liability for supplies is affected by her having a provision,

7. Liability of husband for supplies to wife whom he turns out of

doors without provision,

8. Wife's adultery exempts husband from liability, -

9. Whether at common law there was a liability for support of

one's child, parents or graud-parents. Of the statute of 43

Eliz. c. 2, § 7, and statute of Virginia,

10. Right of action against father for support of child rests on his

11. Clearly no implied contract by father to pay for goods furnish-

ed or services rendered to child who has attained twenty-one,

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CHAP. 33.-Action on a contract for the sale of land;

or the breach of any warranty, express or im-

1. Where action is against vendor or vendee of an estate in fee

2. Whether on a sale of personal property generally, the contract

imports that the vendor has a good title,

3. What on a sale of goods, is a warranty of quality,

4. Whether action will lie for breach of warranty, without a re-

turn of the thing sold. Necessary that there should be pri-

vity between plaintiff and defendant,

CHAP. 34.-Action against a tenant for rent; or for use

and occupation; or for failure to keep, and de-

liver up, premises in good repair,

1. Of the statutes of 32 Hen. 8, c. 37; 8 Ann, c. 14, § 4, and 11

Geo. 2, c. 19, § 4. Equivalent provisions in Virginia, allow-

ing recovery of rent or a reasonable satisfaction for use and

2. Of the statutes of 4 & 5 Ann, c. 16, § 9, 10, and 11 Geo. 2, c.

19, § 11, as to attornment of the tenant. Like provisions in

Virginia. Effect thereof,

3. Effect of eviction. When and how rent may be apportioned,

4. Particularly of the action for use and occupation.

suppose that no such action lay at common law.

the cases. Clear that in England the action was maintained

before the statute of 11 Geo. 2, c. 19, § 4. Decisions recog-

nize the action in Virginia, Maryland, Pennsylvania, Ken-

tucky and Massachusetts,

5. Object of the statute of 11 Geo. 2, c. 19, § 14. How far since

this statute, a party in an action for use and occupation may

use a writing which is not a deed making a demise. How

to fix what is a reasonable satisfaction,

6. To maintain an action for use and occupation, the fact of use

and occupation must be alleged and proved,

7. Where lessee holds premises after lease expires, or under as-

signee of lessor, whether action will lie for use and occu-

8. Where after lease expires, premises are held by an under-

tenant, or by one of the original lessees, whether all of those

lessees continue liable,

9. Action for use and occupation proceeds on the ground of con-

tract. It will not lie against a trespasser,

10. Whether action for use and occupation will lie against vendor

11. Action lies against tenant for not using premises in a tenant-

like manner; or for breach of contract to deliver up same

in good repair,

CHAP. 35.-Action for proportion of general average,

1. General rule in case of jettison. Exception of goods stowed

2. Rule as to jettison of goods not on deck illustrates a more ge-

neral principle, that all for whose benefit a sacrifice is made,

should contribute to pay for it. When the voluntary strand-

ing of a ship comes within that principle,

3. To give the right to contribution, certain leading conditions

are adhered to. What they are. Particularly of the rule

that by the sacrifice, the safety of other property must be at-

tained. Rule inapplicable where expenses are incurred at

an intermediate port,

4. Under what circumstances there is a right to contribution for

expenses incurred at an intermediate port,

5. When vessel enters an intermediate port for the safety of all,

what expenses are a subject of general average. Particu-

larly as to wages and provisions of the crew during the de-

6. Manner of calculating the average,

7. Usually owner of ship recovers from insurer,

8. Remedy for proportion of general average exists at law as well

CHAP. 36.-Action against a corporation, professional

man, broker or other agent, for breach of duty, 394

1. At common law, one undertaking to do an act without reward

is not answerable for mere nonfeasance. The case is differ-

ent when the employment is actually entered upon; the un-

dertaking must then be performed according to its terms,

2. Action against an agent for breach of duty to insure plaintiff's

3. Action against broker who effected insurance, for not using

diligence to get the loss settled; or for other breach of duty,

4. Action against a bank for failing to give due notice of disho-

nour; or against a bank or other corporation for denying to

a stockholder the benefit of his stock,

5. Action against an attorney for damage arising from his want

of skill or diligence,

6. Action against a farrier or surgeon for acting unskilfully,

CHAP. 37.-Action for services rendered, work done or

materials furnished,

1. For services as attorney, physician or arbitrator,

2. Where a servant contracts for a certain term, before the end

of which he quits service, whether he has a right to compen-

3. Rule in England where the master dismisses for misconduct.

Remedy of a clerk, servant or agent wrongfully dismissed,

4. Action by a seaman for wages; or by a ship owner for freight,

5. When a party contracts to do certain work and voluntarily

leaves it unfinished,

6. Under what circumstances a party who has done work but not

according to his agreement, may recover on a quantum me-

7. Effect where compensation is claimed for what was badly done,

8. Where compensation is claimed for extra work or superior ma-

CHAP. 38.-Action for the price of goods,

1. Consent of both parties necessary till the bargain is closed,

2. Where sale is made and vendor is to do nothing more, as be-

tween him and vendee, there is a right of action for the price

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