Livingston v. Rogers

but at the same time : they must be concurrent engagements. The plaintiff’s promise is here stated to have been made at the request of the defendant. If, instead of a naked promise, the plaintiff had, at the defendant’s request done an act, which was either a damage to himself, or a benefit to the defendant, it would have been sufficient to have supported the defendant’s promise. An assumpsit founded on a past consideration of beneficial service rendered to the defendant at his request, is good. Such are the cases of Franklin v. Bradell,^[16] Church v. Church,^[17] and Stile v. Smith.^[15] The reason that a past consideration, beneficial to the defendant, must be laid to have been done upon request is, that 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 concurrence. In many cases a request^[7] may be implied from the beneficial nature of the consideration, and the circumstances of the transaction. But in the present case the plaintiff’s promise being laid to have been made upon request, gives it no validity from that circumstance ; for the request alone creates not, of itself, any consideration. In addition to the request, there must be something made or done between the parties, beneficial to the one, or onerous to the other. There must either be a consideration executed, or executory. Even one executed will do if laid to have been done upon request. The plaintiff’s promise in the present case can be valid only because made in consideration of the defendant’s promise; and if the latter was not made at the same time, but at a subsequent period, the plain

tiff’s promise was without consideration and void. I am of opinion this is the just and necessary conclusion in this case; for the. promises are not laid as concurrent, but as made at different times. The case of Hayes v. Warren,^[16] I regard as perfectly in point. That was an action on the case upon promises, and after judgment by default and entire damages, it was alleged, in error from the common pleas to the king’s bench, that on the fourth count, which was for work and labour done, the consideration was laid as past and executed, and not to have been done upon request. Although the work and promise were both laid on the same day, it was held that it must be taken to be a past consideration, as it was stated that ££ postea” he promised; and the judgment was reversed. The work and labour here were beneficial to the defendant, but not being laid to have been done upon request, the court would not declare it so.— They seemed, however, to doubt whether a request might not be inferred from some other expressions in the count, and rather intimated, that had the judgment been after verdict, the request might have been inferred. But there appeared to be no doubt, that the defendant’s promise, by being laid as being made afterwards, although upon the same day, was to be deemed subsequent, so as to render the plaintiff’s act, a past and executed consideration. In a case in Burrows^[17] this decision is pronounced by Wilmot, J. to be absurd. It was not, however, on the ground that the consideration was not justly deemed as executed, but because, in his opinion, according to the cases I have mentioned, a past beneficial consideration, with circumstances to imply a request, was sufficient to support the promise. The case, there

•fore, for the purpose that I cite it, stands unimpeached, and is conclusive on the question. If we consult the precedents of declarations^[16] upon mutual pro- . 1 .. , . A , mises, they uniformly state the promises to be concurrent; that when the plaintiff had promised, the defendant in consideration thereof, then and there assumed upon himself. From hence I conclude, that the promises in the three first counts of the declaration, are not laid as a sufficient consideration for each other; because they are not stated to have been made concurrently, or at the same time, but at different times of the same day. According to the decision in Strange, and according to common understanding, the meanings of the expressions “ afterwards” and “ at the same time,” are totally distinct. The last count is good, but the damages being entire,^[17] the judgment must be arrested. The case of Crosby v. Adams and Bellamy, decided in this court in July term, 1795, and afterwards reversed upon error, is stated also to be in point. The counts m that cause were precisely the same, as to laying the time of the mutual promises, and if the court of errors went upon the same objection, that I have been considering, as was suggested in the argument^[15] of this cause, that decision is sufficient to uphold this opinion. Though it is not now necessary to consider the want of a record authorising the trial, which was urged as another ground for arresting the judgment; yet, as connected with the other, it may not-be inexpedient to notice it. It appears, from the record, 'that on the first trial a verdict was given for the defendant, and an exception taken to the opinion of the judge. That upon the removal of the cause into the court of errors, the judgment of this court in favour of the defend

ant, was reversed, a venire de nova ordered, and the record was remitted back to this court. This order’ of the court above was correct. Not having the record before them, but only a transcript of it, they could not of themselves, award a venire de nova but agreeably to the English precedents, they very pro* perly adjudged that the court below should make such an award.^[16] This is all that appears before us. This court never has made an award of a venire de nova in pursuance of the direction of the court of errors. The second trial was consequently without any authority, and in my opinion, altogether null and void. There certainly never was an instance of a new trial had without any award by the court for the same, and without any record of such award, and such new triral held good, merely in consequence of the appearance of the defendant. A defect of record is moveable in arrest of judgment,^[17] and is a deficiency that is not in any shape amendable. Irregularities in the contents, or in the execution of jury process are amendable. The process is amendable by the roll, and the circuit record is amendable by the issue roll. So mere continuances may be entered after judgment, but no case ever came up to the present. In this there was a trial without any award for it whatsoever, either upon the record or the minutes of the court. The circuit judge had no authority to try a second time the matter in issue on the issue roll; without an award of a venire de nova by the court.— There are cases were a trial has been held void, because the venire was ..not warranted by the roll, and the cause was tried by a difieren! jury than that which the record directed.;^[15] To hold this amendable in the present case, would be unprecedented, and in my

opinion, would tend to the abolition of all regularity, form and order in our practice and judicial proceedings. I hold it essential, that it should be made to appear, that previous to the last trial there was an order for a venire de nova, the court of errors not having of themselves made such an order, and not having the authority to do it. As then the second trial was without any award of a venire, it was an absolute nullity, and the judgment must be arrested, unless the party choose to move to award a new venire. As there is one good count in the declaration, the plain-tiE may, if he choose, on the first ground, sue out a venire de nova, and may also amend his three first counts by striking^[16] out the words “ afterwards, to “ vsitj being the ground on which the judgment ought to be arrested. This, however, must be on payment of costs since declaring. On the point of amending by enlargement of the damages laid, the court^[17] is divided, consequently the plaintiE in this respect takes nothing by his motion.