Newdigate v. Davy. For a part of a sum of money paid, and the whole fum afterwards recovered by judgment, 1 Vern. 176, Barbone v. Brent. By a foldier against his captain for the value of a horse loft in a storm, 2 Ld. Ray. 1007. Norris v. Napper. By a woman against a man who married her, having a former wife living, for rents of the plaintiff's lands received by the man, 11 Mod. 146, Afber v. Wallis. Against a fheriff for money levied on a fi. fa. Comb. 430, 447, 1 Salk. 22. 6 Mod. 161. For the price of goods taken in execution, and fold under a warrant of diftrefs upon a conviction, the conviction having been quafhed. Feltham v. Terry, cited in Lindon v. Hooper, Cowp. 419. So it lies against a stake-holder on the determination of a wager, 10 Mod. 315, Temple v. Welds. For money paid to infure lottery tickets, fuch infurance being contrary to law. Cowp. 793, Browning v. Morris. For a forfeiture under a bye-law of the corporation of barber-furgeons in London, 2 Lev. 252. So it lies in difaffirmance of the contract, for the purchase money paid for a thing not delivered, 1 Str. 407, Anon. For money paid by mistake, Cowp. 567, Buller v. Harrifon. Doug, 637, (615) Ancher v. Bank of England. Against commiffioners of bankrupt, for a dividend, Doug. 408, Brown v. Bullen. Against the principal, if the money be paid over by the agent. 1 Str. 480, Cary v. Webfter. 4 Bur. 1984, Sadler v. Evans. In the cafes of a fictitious payee of a bill of exchange it was admitted there was no privity, and yet the plaintiffs recovered on the count for money had and received, 1 H. Bl. 313, Collins v Emmit. 3 T. R. 177, Tatlock v. Harris. 3 T. R. 182, Vere v. Lewis. 1 H. Bl. 586, Gibson v. Minet. In the following cafes there was no privity of contract, yet the plaintiff had judgment. Styles, 296. Starkey v. Mill, 1 Vent. 119, Hornfey v. Dimocke. 1 Bur. 374, Harris v. Huntback. 2 Bur. 1005, Mofes v. Macferlan. 3 Bur. 1516, Grant v. Vaughan. Cowp. 199, Clarke v. Shee and Johnfon. 2 W. Bl. 827, Hitchen v. Campbell. 3 Wilfon 308, S. C. Thefe cafes clearly fhow that the want of privity is no objection to the action of indebitatus affumpfit for money bad and received. If then the want of privity is no bar, what is there to prevent the plaintiff from recovering against the defendant? Is it that he is not in justice entitled to the money? Or has the defendant a right to retain it? It is admitted that the plaintiff may look to the intermediate indorfer, and that be may recover from the defendant. The objection then is that the defendant is not liable to the present plaintiff, but to the intermediate indorfer, who alone is liable to the plaintiff. But the plaintiff may fue in the name of the intermediate indorfer, "for," as lord Holt fays in Buller v. Crips, "the indorsement amounts at least to an agreement "that the indorfee fhould fue for the money in the name of the in"dorfer and receive it to his own use;" and this court will prevent

The

The intermediate indorfer from releafing the action, and from interfering in any other manner to fruftrate the plaintiff's fuit. Besides, a recovery and fatisfaction in the prefent action will be a bar to any action which the intermediate indorfer may bring against the prefent defendants on the fame note. Complete juftice is done between both parties in the shorteft, leaft expenfive, and least oppreffive manner; and that circuity of action, which the "law abhors," is avoided. If the plaintiff recover against the intermediate indorfer, and he against the defendant, the judgment will come down upon the defendant charged with the heavy expenses of two fuits inftead of one. plaintiff will be turned round upon a mere point of form, and perhaps may lose the debt altogether by the infolvency of the intermediate indorfer. If the indorsements are in blank the plaintiff may ftrike out the intermediate indorsements and declare as the immediate indorfee of the first indorfer. Evans on bills 15, 1 Efp. Rep. 180, Smith v. Clark, for a blank indorsement authorizes the holder to fill it up with what he pleases, confiftent with the nature and tenor of the inftrument. So that if privity is neceffary, it is in the power of the plaintiff to raise it. But the cafes before cited fhow that privity is not neceffary to support the action for money had and received; and from the nature of the thing it can not be neceffary in any cafe where the inftrument is negotiable, whether it be made fo by the cuftom of merchants, by pofitive statute, or by the contract of the parties.

5. The fifth propofition is that a promise in writing, without a confideration expreffed, is nudum pactum.

This doctrine of nudum pactum seems not to be well settled, although much has been faid upon the fubject.

3

It was confiderably difcuffed in the cafe of Pillan v. Van Mierop, Bur. 1663, but as there were other principles in that case, it was not neceffary to decide abfolutely upon this point. Yet the whole court feemed ftrongly inclined to the opinion that the rule, ex nudo pacto non oritur actio, did not apply to a promise in writing. Lord Mansfield faid, "A nudum pactum does not exist in the ufage and law of "merchants.

"I take it, that the ancient notion about want of confideration was "for the fake of evidence only; for when it is reduced to writing, as "in covenants, specialties, bonds, &c. there was no objection to the "want of confideration. And the ftatute of frauds proceeded upon the "fame principle. In commercial cafes amongft merchants, the wait "of confideration is not an objection."

Mr. juftice Wilmot. "I can find none of those cafes that go upon "its being nudum pactum, that are in writing; they are all upon parel, "I have traced this matter of nudum pactum; and it is very curious. "He then explained the principle of an agreement being looked upon "as a nudum pactum, and how the notion of nudum pactum first came into our law. He faid it was echoed from the civil law. • Ex nu"do pacto non oritur actio.' Vinnius gives the reafon in Lib. 3, tit. de obligationibus, 4 to Ed. 596. If by ftipulation, (and a fortiori, if by "writing) it was good without confideration. But it was made requi "fite in order to put people upon attention and reflection, and to "prevent obfcurity and uncertainty: and in that view either writing "or certain formalities were required. Id. on Juftinian 4 to Ed. 614. "Therefore it was intended as a guard against rash, inconfiderate, "declarations: but if an undertaking was entered into upon delibera "tion and reflection it had activity; and fuch promises were binding. "Both Grotius and Puffendorf hold them obligatory by the law of na ❝tions. Grot. lib. 2. c. 11. de promiffis. Puff. lib. 3. c. 5. They are "morally good, and only require afcertainment. Therefore there is "no reason to extend the principle, or carry it farther. There would ❝ have been no doubt upon the prefent cafe, according to the Roman "law; because here is both ftipulation (in the exprefs Roman form) "and writing."

Mr. Juftice Wilmot then refers to a paffage in Bracton which will be confidered presently, and proceeds thus, "Our own lawyers have "adopted exactly the fame idea as the Roman law. Plowden, 308, (b.) " in the cafe of Sherynton and Pledal v. Strolton and others, mentions "it and no one contradicted it. He lays down the distinction be"tween contracts or agreements in words (which are more base) and "contracts or agreements in writing (which are more high); and puts "the diftinction upon the want of deliberation in the former cafe, " and the full exercise of it in the latter. His words are the marrow "of what the Roman lawyers had faid. Words pafs from men lightly;' but where the agreement is made by deed, there is more ftay, " &c." "The delivery of a deed is a ceremony in law, fignifying fully his good will that the thing in the deed should pafs from him "who made the deed, to the other; and therefore a deed, which "must neceffarily be made upon great thought and deliberation, fhall "bind, without regard to the confideration." "The voidness of the "confideration is the fame in reality, in both cafes: The reafon of "adopting the rule was the fame in both cafes; though there is a "difference in the ceremonies required by each law. But no ineff "cacy arifes merely from the naked promife. Therefore if it ftood only upon the naked promife, its being in this cafe reduced into writing,

•t

is a fufficient guard againft furprize; and therefore the rule of nudum "pactum does not apply in the prefent cafe.

"I can not find, that a nudum pactum evidenced by writing has ever "been holden bad; and I should think it good: though where it is "merely verbal, it is bad. Yet I give no opinion upon its being good always when in writing." "It has been melting down into com"mon fenfe, of late times."

Yates and Afton, juftices, concurred in opinion, nearly on the fame grounds.

This opinion of the court in Pillans v. Van Mierop, does not seem to be contradicted by any fubfequent cafe, fo far at least as it affirms this principle, that a written promife carries with it primâ facie evidence of a good confideration, (until the contrary appears ;) and throws the burthen of proof upon the oppofite party. So that in an action between the original parties, upon a promife in writing, it does not feem to be neceffary to aver a confideration:* Blackstone's opinion, (2 Com. 446,) goes further than this, for he fays, " if a man gives a

*At the time this argument was made, the writer had not seen the cafe of Rann v. ̧ Hughes, in the Houfe of Lords, reported in a note to the cafe of Mitchinson v. Herfon, 7 T. R. 350, which is faid, in a note to the 3d edition of Doug 683, to have been decided 14th of May, 1778, and to be reported in 7 Br. Parl. cafes, 550. Nor is the cafe mentioned by Powell or Fonblanque in treating of this fubject.

The Lord Chief Baron Skynner, in delivering the opinion of the judges, has thefe obfercations." But it is faid that if this promife is in writing, that takes away the neceffity " of a confideration, and obviates the objection of nudum pa&um, for that cannot be where "the promife is put in writing;" "but whatever may be the rule of the civil law, there "is certainly none fuch in the law of England. His lordship observed, upon the doctrine of nuduin pactum by Mr. J Wilmot, in the cafe of Pillans v. Van Mierop and Hopkins, "3 Bur. 1663, and that he contradicted himself, and was alfo contradicted by Vinnius in his comment on Juftinian.

"All contracts are by the laws of England distinguished into agreements by Specialty, "and agreements by parol; nor is there any fuch third clafs, as fome of the counsel have "endeavored to maintain, as contracts in writing If they be merely written, and not

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fpecialties, they are parol, and a confideration must be proved But it is faid that the "ftatute of frauds has taken away the neceffity of any confideration in this cafe; the sta"tute of frauds was made for the relief of perfonal reprefentatives and others, and did not intend to charge them further than by common law they were chargeable His lordfhip here read thofe fections of that ftatute which relate to the prefent fubject. He ob"ferved that the words were merely negative, and that executors and administrators fhould not be liable out of their own eftates, unless the agreement upon which the action was brought, or fome memorandum thereof, was in writing and figned by the party. But this does not prove that the agreement was still not liable to be tried * and judged of, as all other agreements in writing are, by the common law, and does "not prove the converfe of the propofition, that, when in writing, the party muft be, "at all events, liable. He here obferved upon the cafe of Pillans v. Van Mierop, in Bur. 4 and the cafe of Lofb v. Williamfon, Mich. 16 G 3. in BR; and fo far as thefe cafes "went on the doctrine of nudum pactum, he feemed to intimate that they were erroneHe faid that all his brothers concurred with him, that in this cafe there was not

"promiffory note, he fhall not be allowed to aver the want of a confides "ration in order to evade the payment; for every note from the fub"fcription of the drawer," "carries with it internal evidence of a good confideration." The cafe, however, which he cites from lord Raym. 760, does not bear him out in the full extent of his propofition; for the court faid, that "though no confideration was expreffed in Hurf's "note, yet the note, being fubfcribed by Hurft, was good evidence of ❝ a debt due from Hurst to the plaintiff.”

There is certainly a difference between good evidence, and incontrovertible, or conclufive evidence. The expreffion good evidence, feems to imply only prima facie evidence. And this feems to be the extent of the propofition, as it applies in an action between the original parties to a note, for when it is negotiated and the action is between an indorfee and the maker, the latter will not be allowed to aver the want of a confideration, because "its operation is then governed by "the fame law as a bill of exchange, which is the law merchant; and "that is founded upon the law of nature and nations, in which the want "of a confideration is no essential defect in a contract," (1 Powell on "contracts, 341,) and in which the great leading principle is, fides eft "fervanda. 1 Fonb. 338, note (d.)

Powell and Fonblanque have both controverted the doctrine as laid down by Wilmot, in the cafe of Pillans v. Van Mierop, and by Blackftone in the paffage above cited; but their arguments only go to prove that a note in writing is not conclufive and incontrovertible evidence of a good confideration, between the original parties; and it is believed a cafe can not be found in which the plaintiff has been put to prove the confideration of a written promife, by a mere denial on the part of the defendant. It seems to be the rule, that the plaintiff is not obliged to

❝a fufficient confideration to fupport this demand, as a personal demand against the defendant, and that its being now supposed to be in writing makes no difference." This cafe, as far as it goes, must be confidered as having decided the law in England, where the decifions of the highest court of judicature are regarded as binding But in this country it can only be refpected as an opinion; and the question is ftill open as to the grounds of that opinion.

It is not contended that a promife in writing can not be a nudum pactum; but the question is whether the burden of proof is not thrown upon the promifor; or whether the writing does not raise a prima facie prefumption of a good confideration. How far this queftion is affected by the cafe of Rann and Hughes, is left to the confideration of the reader. If a promiffory note is admitted to be a mercantile inftrument, and governed by the law merchant, the queftion of nudum pactum can not arife in the prefent cafe. For it is believed to be fettled law, that “ a nudum pactum does not exift in the usage and law of

merchants."

Browne, in his view of the civil larv, vol. 1. p. 358, in a note, fpeaking of writings not under feal, as confidered at common law, fays, they may be evidence of the agreement, or intent of the parties, but not conclufivs evidence of fufficient confideration;" and cites the cafe of Renn v. Hughes.