that decided, that if one party has tin" a different time of the ALBANY, fame day to afient to the agreement, the other party is not ■ J^.' ^_' > held to his prior promife, and the promifes are nuda pa£la. It is clear, therefore, from this laft decifion, and from the reafon of the thing, that mutual promifes, where one is the confideration of the other, muft be made not only on the fame day, but at the fame time: they muft be concurrent engagements. The plaintiff's promife is Here fhted to hare heen made at the requeft of the defendant. If, inftcad of a naked promife, the plaintiff had, at the defendant's re^queft done an aft, which was either a damage to himfelf or a benefit to the defendant, it would have been fufficient to have lupported the defendant's promife. An aiTumpfit founded on a paft consideration of beneficial fervice rendered to the defendant at his requeft, is good. Such are the cafes of Franklin v. Bradell,* Church v. Church,]- and » Hutton R*Stile v. Smith.t The reafon that a paft consideration, be- ?'; B»T 2""

T r * + 2 Leon. I It.

neficial to the defendant, muft be laid to have been done up- Vide a'fu cTM. on requeft is, that it is not reafonable, that one man fnouid do another a kindnefs, and then charge Kim with a recompenfe. This would be obliging him, whether he would or not, and bringing him under an obligation without his concurrence. In many cafes a requeft^ maybe impfied from the § SteiSaund. beneficial nature of the confideration, and the circuftances w?'ii"m? s rjt of the tranfac~tion. But in the prefent cafe the plaintiff's T'i" ^"",co1."

r r Icatd the law

nromife being laid to have been made upon requeft, gives it on the fubjeet no validity from that circumitance; tor the requeft alone bid upon recreates not, of itfelf, any confideration. In addition to the f £,„'.,. "*<ja & requeft, there muft be fomething made or done between the llol>- Iv*parties, beneficial to the one^ or onerous to the other. There muft either be a confideration executed, or executory. Even one executed will' do if laid to have been done upon requeft'. The plaintiff's promife in the prefent cafe can be valid only becaufe made in confideration of the defendant's promife; and if the latter was not made at the fame time, but at a fubfequent period, the plaintiff's promife was without confideration and void. I am of opinion this is the juft and r,cceffary conclufion in this cafe -, for the promifes are not laid as concurrent, but as made at different times. The cafe c£

ALBANY, Hayes v. Warren* I regard asperfe&ly in point. That'WM

V.^p-^^w an action on die cafe upon promifes, and after judgment by

Lmnsfton default and entire damages, it was^alleged, in error from the

Rogcn. common pleas to the King's bench, that on the fourth count,

"~~" which was for work and labor done, the confederation was

• a Stra. 93J

laid as pad and executed, and not to have been done upon requeft. Although the work and promife were both laid on the fame day, it was held that it muft be taken to be a paft confideration, as it was ftated that "poftea" he prornifed; and the judgment was reverfed. The work and labor here were beneficial to the defendant, but not being' laid to have been done upon requeft, the court would pot declare it fo. They feemed however, to doubt whether a requeft. might not be inferred from fome other expreflions in the count, and rather intimated, that had the judgment been after verdict, the requeft might have been inferred. But there appeared to be no doubt, that the defendant's promife, by being laid as being made afterwards, although upon the fame day, was to be deemed fubfequent, fo as to render the plaintiff's acl, a paft and executed confideration. In a cafe in tPliiansv. Burrowsf this decifion is pronounced by Wilmot J. to be Burrfibii^"3 a^^ur^- J1 was not> however, on the ground that the confideration was not juftly deemed as executed, but becaufe, in his opinion, according to the cafes I have mentioned, a paft beneficial confideration, with circurnftanccs to imply a requeft, was fuflicient to fupport the promife. T he cafe, therefore, for the purpofe that I cite it, ftands unimpeached, and is conclufive on the qucftion. If we confult the precedents t3 Mor. Va of declaration4 uPon mutual promifes, they uniformly ftate

5*e-M».a trie promifes to be concurrent; that when the plaintiff had Kick.l, P. 73 ./• . , , • • r

promiled, the defendant in confideration thereof then and

there affumed upon himfelf. From hence I conclude that the promifes in the three firft counts of the declaration, are not laid as a fuflicient confideration for each other i becaufe they are not ftated to have been made concurrently, or at the fame time, but at different times of the fame,dM.,,iA*, cording to the decifion in Strange, and according to common underftanding, the meanings of the expreflions "afterwards" and " at the fame time" are totally diftinct. Th« lad count is good, but the damages being entire,* the judg- ^bB*UY* ment mull be. arretted. The cafe of Crofby v. Adams and v^a^-v-v**/ Bellamy, decided in this court in July term 1795, and after- Livi»8«on wards reverfed upon error, is ftated alfo to be in point. The Rogers. .counts in that caufe were precifely the fame, as to laying the . „ WiK . time of the mutual promifes, and if the court of error went Cowp.176. upon the fame objection that J have been confidering, as was fuggefted in the argurnentf of this caufe, that dcciiion , _ BCnfon is fufficient to uphold this opinion. Though it is not now «<•<> "'»»« neceffary to confider the want of a record authorizing the the bench. trial, which was urged as another ground for arrefting the judgment, yet, as connected with the other, it may not be inexpedient to notice it. It appears from the record, that on the firft trial a verditi was given for the defendant, and an exception taken to the opinion of the judge. That, upon the removal of the caufe into the court of errors, the judgment of this court in favor of the defendant was reverfed, a venire de novo 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 tranfeript of it, they could not of themfelves award a venire de novo, but, agreeably to the Englifh precedents, they very properly adjudged that the court below fhould make fuch an award.§ §tSaun4. This is all that appears before us. This court never has made 783. 4 Bro. Pa. an award of a venire de novo in purfuance of the direction Em\4\'\c\v. of the court of errors. The fecond trial was confequently 766Cru'1li'c'

without any authority, and in my opinion, altogether null 4°3- ' i- Ray

'. n '" t-'artl>- 3")

and void, lhere certainly never was an lnftance of a new Skin 514. iH.

trial had without any award by the court for the fame, and without any record of fuch award, and fuch new trial held good, merely in confequence of the appearance of the defendant. A defedr of record is moveable in arreft of judgment,|| and is a deficiency that is not in any fhape amenda- H '?0'' "^brble. Irregularities in the content ,or in the execution of jury- Ahr- f-t.\procefs are amendable. The procefsis amendable by the roll, (P.) "4. lb. tit. and the circuit record is amendable by the iflue-roll. So mere Juru'T continuances may be entered after judgment, but no cafe ever came up to the prefent. In this there was a trial without any award for it whatfoevcr, either upon the record or the minutes of the court. The circuit judge had no authority to try a fe

AI.BANY, cond time the matter in iflue on the iffue-roU; without is

Fell. 1804'

V—»- ■•—w' award of a venire de novo by the court. There are cafes Ratbbone wnere a tr;a] has jjeen ^gjj vo\&t becaufe the venire was not Murray. warranted by the roll, and the caufe was tried by a different

♦ 1 atch 194 JUIT tnan tbat which the record directed.* To hold thisaHob. 76. mcndable in the prefent cafe 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 eflential that it fhould be made to appear, that previous to the lafl; trial there was an order for a venire de now, the court of errors not having of themfelves made fuch an order, and not having the authority to do it. As then the fecond trial was without any award of a venire, it was an abfolute nullity, the judgment mud be arrefted, unlefs the party choofe to move to award a new venire. As there is one good count in the declaration, the plaintiff may, if he choofe, on the firft ground fue out a venire de novo, and may alfo t 7. D.& E.56 amend his three firft counts by ftrikingf out the words uaf*' forwards, to wit," being the ground on which the judgment ought to be arrefted. This, however, mult be on payment of cofts fince declaring. On the point of amending by 5 Confining rf enlargement of the damages laid, the court$ is divided, con

i^omp'fonTf fcquently the plaintiff in this refpeft takes nothing by his 1.0 other. gF»- motion.

ing any opin- "*""»"*•

,on' Rathbonc against Blackford, Manucaptor of


rWr°TMmir" IN Ju,y term 1801 judgment was entered againft Murbankrurtcy in rav for whom the defendant was fpecial bail. In the fame

their declaring' ...... n •„!)

a man a bank- term a capias ad fatisfac lend urn W3S returned non elt agamic the day when Murray, and thereupon a capias in debt on the recognizance

h Uno^on?' of bail was iffueJ againft thc bail> which wa3 alfo r0tUnlf,i cluuve as to } ferved Qn the 3J Jay 0f Ju]y ^m^ Jaft Jay of tlie

the time, they '.... An k,r

having no Id- term. A judgment was obtained againft him in the UucDcr

thority to dc- ...

cidc it. if a term following.

£nnorthe° firft Blackford was committed to prifon on mefne procefs oa roniinue°tb«re tlie firft of Ju,y 1801> antl continuei1 there GO days without 60 diy», in the finding bail. A commiffion of bankruptcy ifflieJ azainfl him was regularly difcharged under the bankrupt a£l. Since his ^,'hBA^Y' discharge a fi. fa. had iflued, and Blackford's goods taken on it. ^^^-^^m^S

com ft of w huh b r' .ill,.

time hei. fi«- the 20th November 1801, and thecommiiTioners>lecl.ti'Wn»mth r,'and»t became a bankrupt on the firft of Ju!y 1 SO 1 i and be

Per curiam. A motion is now made on the part of the Ualhone defendant to fet afide this execution, and to (lay all further Murray proceedings againft him. He contends that his act of bank- , . ruptcy was not complete till the expiration of fixty days af- of that period ter his confinement, or until the firil of September 1801 j bankrupt and, that inafmuch as he was fixed as Murray's bail on the ^ 5uTyn'futd 3lit of July 1801, this debt could have been proved under out' he wi" bo the commiffion, and that, therefore, the prefent proceedings from his recog

. ° nizance,andan

are irregular. execution tak

This naturally produces an inquiry, bcuTafidPc;0nin

Firft, As to the time of Blackford's becoming a bank- ^'» "*;'he

o plaintiff may

rupt, and pro»e his debt

. under the com*

Secondly, Whether this demand could have been proved million. under the commiiTion againft him ; for if fo, it is not denied that he is entitled to relief.

By the firft fettion of the ad of congrefs "eftablifliing "an uniform fyftem of bankruptcy," the remaining'in prifon two months or more on being arrefted for debt, is made an a£t of bankruptcy. Blackford went to jail on the firft of July 1801, and continued there above fixty days j the plaintiff infills that by relation he became bankrupt on the day he went into confinement, and that not being then fixed for Murray's debt, the prefent demand was not proveable under the commiffion. The commiffioners, it is true, have undertaken to,fix that, as the day on which he became a bankrupt; but in this, if they have not exceeded their powers, they have at leaft done a nugatory adt which is binding on no one. They are to declare the party a bankrupt, but no authority is given to afcertain the day of his becoming fo. Nor would it have been difcreet to have veiled fuch power in them, for their proceedings being fomewhat ex partet and very fummary, fo important a fac~l in which many, who had no opportunity of being heard might be interefted, {hould not, unlefs abfolutely necefiary, have been left to be fettled by them. Thus in England, the commiffioners being fatisfied of the debt, the trading, and aft of bankruptcy, declare and adjudge, that the party became bankrupt ge

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