Hicks v. Burhans — 10 Johns. 243

Majority

p. 245

Hicks against Burhans and others.

NEWYORK,

May, 1813.

Headnote

A written prá^¿¡ed (K good, if the are^liegeTto ^ 8e“e„ iuest $ ?n.<í ‘i: not so laid, a request may from^e'be-“f fithe conrideration, and the circurastances of the oa68‘

IN ERROR, on certiorari, from a justice’s court. B. and others brought an action of assumpsit against Hicks, before the justice. The cause was hied by a jury. The plaintiffs gave in evidence a writing dated the 16th of January, 1808, signed by the defendant and ten others, reciting that whereas the plaintiffs had, previous to the date of the writing, been in pursuit of several persons who had absconded and were in debt to the subscri e . foers, they* the subscribers* promised to pay to the plaintiffs* or .either of them, an equal proportion of all the expenses which the plaintiffs had been at, in pursuing such fugitive debtors, and also promised to pay their equal proportion of all further expenses t he o plaintiffs should be at in further pursuing the said persons, &c. The plaintiffs proved an account of the expenses, amounting to about 138 dollars; and that the defendant examined the account when presented to the creditor^, and made no objection to it, except to a charge of 20 dollars.

The jury gave a verdict for the plaintiffs for 17- dollars, on which the justice gave judgment.

The written promise to pay, if founded oh -it

p. 246

past consideration, may be good, if the past service be laid to have been done on request; and if not so laid, a request may be implied from the beneficial nature of the consideration, and the circumstances of the transaction. ( 1 Caines’ Rep. 585 , 586.) Here the past service consisted in an expensive pursuit, by the plaintiffs, of certain fugitive debtors, who were indebted to the defendant an others ; and it appeared that the plaintiffs had exhibited their accounts, at a meeting of the creditors, and that the-defendant examined them, and made no objection, except to a single item of the charges. A request, in this case, might have been implied; and we ought to intend it to have been proved upon the trial. There are no formal pleadings in the case, and the return does not negative the fact of a request.

There was no other objection raised that merits notice. The judgment must be affirmed.

Judgment affirmed.