(d) Pawle v. Gunn, 4 Bing. N. C. (63 E. C. L. E.) 445; Jones v. Orchard, 24 L. J. (C. P.) 229; 16 C. B. (81 E. C. L. E.) 614.

(e) Driver v. Burton, 21 L. J. (Q. B.) 157; 17 Q. B. (79 E. C. L. E.)

989

1 This principle is well illustrated by the case of Draughan v. Bunting, 9 Ired. 13, where the plaintiff, who had endorsed and been compelled to pay a promissory note, relied in an action against a prior endorser, on a parol promise of indemnity given to him by the maker at the time of the endorsement. The court held it clear that the action could not be sustained on the parol promise, because being one "to answer for the debt or the default of another," it came within the Statute of Frauds, and should therefore be in writing, but that the law implied a promise to indemnify from the relation of suretyship, upon which the plaintiff might have recovered, but for the following circumstance: the plaintiff, in order to prove this parol promise, had called the maker of the note as a witness, and had been obliged to execute a release to him, in order to restore his competency, and it was urged that this release to the principal discharged the surety, which was undoubtedly correct, as the Court held: but it being also in evidence that the defendant had acknowledged the receipt of funds from the maker, wherewith to discharge the debt, it was held that a promise was implied thus to apply the money, and the plaintiff was held entitled to recover upon his count for money paid.-R.

(f) See Coles v. Bulman, 6 C. B. (80 E. C. L. E.) 184. (g) Law v. Wilkin, 6 A. & E. (33 E. C. L. E.) 718. See Mortimore v. Wright, 6 M. & W. 482; Linnegar v. Hodd, 5 C. B. (57 E. C. L. E.) 437.

1 Instances of the application of this rule will be found in Pawle v. Gunn, 4 Bing. N. C. (33 E. C. L. R ) 445; Derby v. Wilson, 14 Johns. 378; Rowntree v. Holloway, 13 Ala. 357; Kenan v. Holloway, 16 lb. 58; Guerard v. Jenkins, 1 Strob. 171.-R.

Without such power, acceptance of the service is no evidence of a promise to pay for it (A).1

The third case, in which a request is implied, is that in which a person does, without compulsion, that which the person sought to be charged was compellable by law to do. Suppose, for instance, A. owes B. 50, and C. pays it: now here, if A. promise to repay C, it will be implied that the payment by C. was made at his request (i). But, in this class of cases, you will observe, though the request is implied where there is a promise, yet the promise must be express, for the law will not imply one, as in the two last cases (k): thus, if A. is B.'s *surety, and is forced to pay his debt, the law Implies a request to pay it, and a promise to repay. If he be not B.'s surety, but pays it of his own accord, the law implies neither promise nor request, for a man cannot make me his debtor by paying money for me against my will.2 Yet, even in this case, if B. expressly promise to repay it, a request by him to pay it is implied, for it is a maxim that omnis ratihabitio retrotrahitur et mandato oequi-paratur.1

(h) Taylor v. Laird, 25 L. J. (Ex.) 332, Pollock, C. B.; Boulton v. Jones, 27 L. J. (Ex.) 117. See British Empire Shipping Company v. James, 27 L. J. (Q. B.) 397; confirmed in House of Lords, 30 L. J. (Q. B.) 229.

(i) Wing v. Mill, 1 B. & Ald. 104.

(k) Atkins v. Ban well, 2 East, 505; Bex v. Oldland, 4 A. & E. (31 E. C. L. E.) 929.

1 Implied contract to pay for services may be rebutted by proof of relationship: Smith v. Milligan, 43 Pa. St. 107; Duffey v. Duffey, 44 lb. 399; Hart-man's Appeal, 3 Grant, 271; Amey's Appeal, 49 Pa. St. 126; Butler v. Slam, 50 lb. 456; Daubenspeck v. Powers, 32 Ind. 42. It is a general rule that when a child continues with the parent after coming of age no express contract for wages being shown, the presumption is that no wages are to be paid, but this presumption may be rebutted: Adams v. Adams' Adm'rs, 23 Ind. 190; Hart v. Hess, 41 Mo. 441.-s.

2 Durnford v. Messiter, 5 M. & S. 445; Weakly v. Braham, 2 Stew. 500; Keenan v. Holloway, supra; Lewis v. Lewis, 3 Strobh. 532; Mathews v. Col-borne, 1 Ib. 258; Young v. Dribbell, 7 Humph. 270.-R.

In the three cases I have just put, the law implies a request, on the part of the person sought to be charged, to do that which is relied on as the consideration for the promise upon which it is sought to charge him.2

1 Windsor v. Savage, 9 Metc. 348; Lewis v. Lewis, 3 Strobh. 530; 1 Saund. 264, n.-r.

A voluntary payment of money by one person for the use of another without a previous request, will not support a subsequent promise to refund, unless the payment is beneficial to the promisor: Kenan v. Holloway, 16 Ala. 53. See Turner v. Partridge, 3 P. & W. 172.

2 The salutary legal principle which lies at the bottom of all the cases upon this subject is, that every legal liability must spring from something actually done, and not from something merely said. From this, it is easy to perceive how it is, that from certain acts the law will imply a promise, which shall be so highly regarded that an express promise shall not be allowed to vary it (Hopkins v. Logan, etc, infra), and while at the same time it will disregard the most solemn verbal undertaking that does not spring from some actual transaction. Hence it is, that a warranty after a sale cannot be enforced, unless something new be done at the time of giving the warranty, for the promise stands upon words and not upon acts: Roscorla v. Thomas, infra; Hogins v. Plympton, 11 Pick. 97; Williams v. Hathaway, 19 Pick. 387; Bloas v. Kit-tridge, 5 Vt. 28. In like manner, an undertaking by a landlord for his tenant's quiet enjoyment, is, when made after the contract of tenancy has been entered into, wholly ineffectual for any purpose: Granger v. Collins, 6 M. & W. 458. So, after a bargain has been made, a naked promise to pay more or take less than the contract price, is useless to the party receiving it: Geer v Archer, 2 Barb. 420; Williams v. Hathaway, 19 Pick. 387. And the reason of these cases is obvious, from the danger which would arise if mere conversations, unsupported by acts, were allowed to go to a jury, as evidence from which they might mould them into contracts. Hence, too, arises an important class of cases, which determine that a precedent debt cannot, of itself, form a sufficient consideration for a promise, for such a debt arises from a contract already fulfilled, and therefore comes within the legal principle just stated: Hopkins v. Logan, 5 M. & W. 241; Vadakin v. Soper, 1 Aik. 287; Russell v. Buck, 11 Vt. 176; Barker v. Bucklin, 2 Den. 59; Railroad Co. v. Johnson, 7 W. & S. 317-328; Jackson v. Jackson, 7 Ala. 791; although, when such a promise is cotemporaneous with an actual transaction., such as a suspension, or an extinguishment of the precedent debt, the acquisition of an additional security for its payment, the commencement of a new course of dealing, or the like, it will be enforced by law, for it does not rest on mere words: Peate v. Dicken, 1 Cr., M. & R. 423; Wilson v. Coupland, 5 B. & Ald (7 E. C. L. R.) 228; Clark v. Sigourney, 17 Conn. 511; Phillips v. Bergen, 2 Barb. 608;