1 In Pool v. Horner, 64 Md. 131, the parties intended to enter into an enforceable contract, but failed to do so on account of the Statute of Frauds. Subsequently the plaintiff having performed all the stipulations on his part, the defendant promised to pay $235 to the plaintiff. It was held that this promise was supported by a sufficient consideration, the plaintiff's acts having been performed at the defendant's request. cf. p. * 454, note 1, post.

In * other words, no express promise made after a consider- ' 473 ation has been wholly executed, and founded wholly upon that consideration, can be enforced, if it differs from the promise which the law implies. Otherwise, there would be two distinct and perhaps antagonistic promises resting upon one consideration.

Exch. 809. In Roscorla V. Thomas. 3 Q. B. 235, the declaration stated, that in consideration that the plaintiff, at the request of the defendant, had bought a horse of the defendant at a certain price, the defendant promised that the horse was free from vice; but it was vicious. Held, bad, on motion in arrest of judgment; for that the executed consideration, though laid with a request, neither raised by implication of law the promise charged in the declaration, nor would support such promise, assuming it (as must DC assumed on motion in arrest of judgment) to be express. But we think this case goes too far in saying, that a consideration which would not raise an implied promise would not sustain an express one. See the observations of Tindal, C. J., in Kaye v. Dutton, cited above.

From what has been said, it will be seen that where the consideration is wholly executed, the law implies in some cases a previous request, provided a promise be proved; but will not imply a request and thence imply a promise. On the other hand, wherever the law implies a promise, there it will also imply a request; and hence it may be said that express request is unnecessary where the law implies a promise. (f)1

(f) It follows from what is stated in the text, that in declaring on an executed consideration, it is not necessary to allege a precedent request where the law will imply a promise without a request. See Osborne v. Rogers, 1 Wms. Saund, 264, n. (1), as corrected by the learned note of Mr. Sergeant Manning, appended to the case of Fisher v. Pyne, 1 Man. & G. 265. Accordingly, in Victors v. Davies, 12 M. & W. 758, it was held, that in a declaration for money lent, it is not necessary to aver that the money was lent at the defendant's request. Parke, B:" There is a very learned note of my brother Manning on this subject, in which he goes into the whole law with respect to alleging a request, and points out the error into which Mr. Sergeant Williams appears to have fallen in his comment upon Osborne v. Rogers. The note is thus: ' The consideration being executory, the statement of the request in the declaration, though mentioned in the undertaking, appears to have been unnecessary. In Osborne v. Rogers the consideration of a promise is laid to be, that the said Robert, at the special instance and request of the said William, would serve the said William, and bestow his care and labor in and about the business of the said William; and the declaration alleges, that Robert, confiding in the said promise of William, afterwards went into the service of William, and bestowed his care and labor in and about,' etc. Here the consideration is clearly executory, yet Mr. Sergeant Williams, in a note to the words ' at the special instance and request,' says, ' these words are necessary to be laid in the declaration, in order to support the action.

It is held, that a consideration executed and past - as in the present case, the service performed by the plaintiff for the testator in his lifetime, for several years, then past - is not sufficient to maintain an assumpsit, unless it was moved by a precedent request, and so laid.' The statement according to modern practice, of the accrual of a debt for, or the making of a promise for the payment of the price of goods sold and delivered, or for the repayment of money lent, as being in consideration of goods sold and delivered, or money lent to the defendant, at his re-quest, is conceived to be an inartificial mode of declaring. Even where the consideration is entirely past, it appears to be unnecessary to allege a request, if the act stated as the consideration cannot, from its nature, have been a gratuitous kindness, but imports a consideration per se. It being immaterial to the right of action whether the bargain, if actually concluded and executed, or the loan, if made, and the moneys actually advanced, was proposed and urged by the buyer or by the seller, by the borrower or by the lender. Vide Rastall's Entries, tit. ' Dette;' and Co. Ent tit. ' Debt.' There cannot be a claim for money lent unless there be a loan, and a loan imports an obligation to pay. If the money is accepted, it is immaterial whether or not it was asked for. The same doctrine will not apply to money paid; because no man can be a debtor for money paid, unless it was paid at his request. What my brother Manning says, in the note to which I have referred, is perfectly correct." And see Acome v. The American Mineral Co. 11 How. Pr. 24.

1 "A question still not free from uncertainty is whether a past benefit is in any case a good consideration for a subsequent promise. On our modern principles it should not be. And it is admitted that it generally is not. For the past service was either rendered without the promisor's consent at the time, or with his consent, but without any intention of claiming a reward as of right, in neither of which cases is there any foundation for a contract; or it was rendered with the promisor's consent and with an expectation known to him of reward as justly due, in which case there were at once all the elements of an agreement for reasonable reward It is said, however, that services rendered on request, no definite promise of reward being made at the time, are a good consideration for a subsequent express promise in which the reward is for the first time defined But there is no satisfactory modern instance of this doctrine, and it would perhaps now be held that the subsequent promise is only evidence of what the parties thought the service worth." Pollock, Cout. (5th ed.) 169.