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NICHOLS VS. RAYNBRED. BRINSLEY vs. PARTRIDGE.

Assumpsit.
Suff.

Jenk. Cent.

NICHOLS vs. RAYNBRed.

Assumpsit will lie in consideration of a promise, without averring a performance, if the mutual promises are made at the same time.

NICHOLS brought an assumpsit against Raynbred, declaring that in consideration that Nichols promised to deliver the defendant to his own use a cow, the defendant promised to deliver him 50 shilling. Adjudged for the 4 Leo. 3. 3 Cro. plaintiff in both courts, that the plaintiff need not to aver

296. 4 Co. 94, 17, 38. Ben.

150. Dy. 30. a. Yelv. 134.

543. Promise

for promise.

Post. 106.

the delivery of the cow, because it is promise for promise. Note here the promises must be at one instant, for else they will be both nuda pacta. (1)

(1) The same doctrine is recognized in 4 Co. 92, Slade's case. Post. 101, Lampleigh v. Brathwait. Yelv. 133, Bettisworth v. Campion. 1 Saund. 320, n. (4.) Archbold's Civil Pleading 100. Cro. Eliz. 889, Lea v. Exelby. 1 Johns. 190, Tucker v. Woods. 12 Johns. 397, Keap v. Goodrich. 1 Chitty. Pl. 297. 3 T. R. 148, Payne v. Cave.--Ib. 653, Cooke v. Oxley. Peake N. P. 227, Kingston v. Phelps. 1 Wils. 88, Martindale v. Fisher. 1 Salk. 171, Thorpe v. Thorpe. 10 Johns. 90, Close v. Miller. 13 Mass. 406, Tileston v. Newell. 1 Caines 583, Livingston v. Rogers. Cro. Eliz. 137, Kirkby v. Coles. Ib. 543, Gower v. Capper. 2 Mod. 33, Smith v. Shelbarry. Com. Rep. 98, Thorpe v. Thorpe. 12 Mod. 455. S. C. Cro. Eliz. 703, Wichuls v. Johns. Bac. Abr. tit. Assumpsit (C.) (F.)

Checq. Cham.

Assumpsit.
Derby.

Declaration

total. 1 Ro.

396. Yel. 70. Jenk. Cent. 297. Mo. 854.

69, 602. Mo.

BRINSLEY vs. PARTRIDGE.

Assumpsit will lie upon an account stated, without showing for what the money accounted for was due.

BRINSLEY brought an action upon assumpsit against Partridge, declaring that he accounted for divers sums of casting upon a money due to the plaintiff by the said defendant, and upon the same account the defendant was found in arrearages to the plaintiff 7 pounds, and that the defendant in consideration thereof did promise to pay to the 708, 986. 3 Cr. plaintiff the said 7 pounds, at a certain day then to come, which he did not pay; to his damage, &c. The defendant Yelv. 70. 1 Cro. pleaded non assumpsit, whereupon the plaintiff had judgment. The defendant assigned for error, that the consideration was not sufficient, because the plaintiff did not show wherefore the money upon the said account was

581. Hetly, 84. 2 Cr. 596, 69.

Cr. Car. 116.

116.

due, for moneys received or lent, or for wares bought and sold. Notwithstanding judgment was affirmed, because by the accounts the debt was confessed good, and the promise made thereupon good.

(1) The common courts, as they are usually called, in actions of asumpsit, are, 1st. Indebitatus assumpsit; 2d. quantum meruit; 3d. quantum valebant; and 4th. Insimul computassent.

In these general counts, it is unnecessary to state the particulars of the plaintiff's demand. The only reason why the plaintiff is bound to show in what respect the defendant is indebted, is, that it may appear to the court that it is not a debt of record or specialty, but only on simple contract; and any general words by which that may appear, are sufficient; and unnecessary statements, such as the local situation of the premises in a count for use and occupation, should be avoided, as a variance might be fatal. 1 Chitty 337.

[88 c]

RICH VS. SHERE.

Declaration in ejectment must show in what town, parish, or hamlet, the demanded premises lie.

[89]

Cornub.

county without a town, bad on error. 2 Le. 21.

Cent. 297. 2 Ro. 396.

RICH brought an ejectione firma against Shere, and Land laid in a declared, that whereas Richard Harris and others, 9 Octob. 5 Jac. Regis at S. Gynneys, in the county aforesaid, Ant. 82. Jenk. did demise, grant and to farm let to the defendant one messuage, four gardens, 200 acres of land, 20 acres of meadow, 80 acres of pasture, 16 acres of wood, and 60 acres of heath and furse, with the apurtenances, called East Ditzard alias Dizard in the said county, to have and to hold, to the said defendant, for five years, &c. The defendant pleads not guilty, whereupon the plaintiff had judgment. The defendant assigned for error, that the plaintiff, in his declaration, did not show in what town, parish, hamlet, or place the said tenement, called the East Ditzard alias Dizard, lay, but in the general county aforesaid. For that cause the judgment was reversed in the exchequer chamber this Hilary term 13 Jac.

Hob. 337.

Yelv. 207.
2 Cro. 282. Plo.

2 Ro. 617.

191. a.

Want of it in

hurts not where

Note, here is a trial without a visne, if the jury were Visne. from Saint Gynneys; and if it were de corpore com. it was the declaration not good, for that is not to be allowed, where a nearer the matter is place may be, but for titles, as knight or not, or the like, confessed by which are large.

the defendant. Ante. 82.

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Ebor.
Case.

FOXCROFT vs. LACY.

Action lies for slander to many not

named but signified.

Jenk. Cent.

297. 1 Roll.

75. 2 ('r. 635. Post. 252. Ant. 6.

An action lies for slanderous words uttered of several persons not named but signified and described; and any one of such persons may maintain an action.

FOXCROFT brought an action of the case against Lacy and declared, that whereas Lacy and four others had a suit in the star chamber against the plaintiff and sixteen Checq. Cham. others concerning conspiracies, &c. and that communication was moved between John Walter and Rice Gwyn, esquires, concerning the said suit, that the defendant, Lacy, upon the said communication, in their presence, spake these words; these defendants, innuendo the plaintiff and the other sixteen defendants, are those that helped to murder Henry Farrer, meaning one Henry deceased, who was murdered by one Thomas Oldfield, who was hanged for it; to the plaintiff's damage, &c. The defendant denieth the words; and found for the plaintiff, and Dy. 19. Styl. judgment given. Error was assigned generally, that the judgment should have been contrary; but judgment was affirmed; for it was holden that it was sufficiently laid to entitle every one of the defendants to a several action, as if they had been specially named. (1)

Latch. 262.

Styl. 244, 350.

156. Cr. Jac.

647.

(1) In an action of slander, two or more persons may join as plaintiffs where their joint interest has been affected. Thus where a libel reflects upon two partners in their trade, they may join. 3 Bos. & Pul. 150, Cooke v. Batchelor. 2 East 426, Maitland v. Goldney; and two jointenants or coparceners may join in an action of slander of their title to the estate. 2 Saund. 117. a. n. (2.) But unless a joint interest be affected, several actions should be brought, though the same words be spoken, or libel published, concerning several persons. Cro. Car. 512, Smith v. Cooker.

Checq. Cham.

Devon.
Missumming
hurts not.
Jenk. Cent.

297. 2 Cr. 247,

569. Yel. 5.

Mo. 298. Dy.

55. b. 2 Cr.

BAYLE VS. GIRD.

Missumming in a declaration, does not vitiate.

BAYLE brought an assumpsit against Gird, declaring, that in consideration he should dye divers clothes, called Devonshire kersies, into several colors, naming so many severally as amounted in the whole to sixty, that the defendant did promise to pay him a certain sum, for the

[89 b]

499. Latch.

dying clothes.

dying of every several cloth, and avers that he did accordingly dye the said clothes, amounting in all to fiftynine; whereas indeed they were sixty, ut supra, and 175. Pop. 209. that the money came to nineteen pounds, which he had dumpster not paid. Found and adjudged for the plaintiff; and error assigned, in that it appears he should have dyed sixty, and dyed but fiftynine, and so the sum aforesaid not due. Also the jury did assess damages occasione detentionis debiti præd.; whereas it should have been occasione non performationis assumptionis, &c. But the judgment was affirmed, for that it was first averred he Ant. 42. dyed all, which appeared before to be sixty. So the other was but a missumming, and as to the other it was a debt, and a promise implied upon it.

(1) In Cro. Jac. 247, Aderton v. Dunstar, it was held that in assumpsit for so many pieces of goods at so much per piece, if the total be short cast 1d. it is a fatal objection on error. But in the subsequent cases of Pemberton v. Shelton, Ib. 498, and Spore v. Drury, Ib. 569, that decision seems to be overruled. And in M'Quillin v. Čox, 1 H. Bla. 249, it was held that in an action of debt on simple contract, the declaration was good, though it specified, by the several counts, a less sum than appeared to be demanded by the recital of the writ.

KEERE VS. OWEN.

If the entry of the writ of elegit upon the roll be wrong, it is error, though the writ itself be right.

[90] Checq. Cham. London.

Elegit.

Error in execu

Cent. 298.

KEERE recovered four hundred pounds debt, against Error. Edward Owen, who died, and upon a scire fac. into the county of Surrey the sheriff returned Rebecca terretenant tion. Jenk. omnium terrar. et tenementorum in balliva sua quæ fuerunt præd. Edwardi, &c. And judgment given that Keere should have judgment and execution against the said Rebecca; whereupon the said Keere prayed the elegit Dy 208. P. 5. thus entered in the roll; elegit sibi liberari medietatem omnium terrarum et tenementorum in Com. Surrey, tenend., &c. quousque, and left out quæ fuerunt prædicti Edwardi, &c. And for this judgment was reversed quoad adjudicationem executionis, upon the elegit, and yet the

224

[90 a]

Post. 246.

SPATHURST'S CASE. PUCKERING'S CASE. HOWARD vs. BELL.

writ of elegit itself, and the return of it, were well in that point. But where the roll is faulty the writ will not help. It was also assigned for error, that she was returned terretenant omnium terrarum, without assigning of what in certain that was not allowed for error.

SPATHURST'S CASE.

Tenure, de Domino Rege, ut de uno grosso, pro vigesimum propter unius fœdi militis is a tenure by Knight's service in chief.

All tenures in chief are in gross.

PUCKERING'S CASE.

The heir being knighted within age after the death of his father, may sue livery, and is made, as to all cases of wardship, of full age.

[91]

Star Chamber.

Mo. 562, 788.

HOWARD vs. BELL.

All the tenants of a manor, when a part of them are prosecuted by their lord in a suit concerning their common rights, may unite and defend the suit at their common charge; and if they assemble peaceably for consultation about such defence, it is not an unlawful assembly.

In the Star Chamber, in a cause between the Lord William Howard, plaintiff, and Christopher Bell, Thomas Salkeld, John Dacre, and the other defendants, it was holden by my Lord Coke and myself, that the tenants of the manor of Gilseland claiming tenant right, and being now impeached by the plaintiff, being lord of the manor, who supposeth their estates to be void in law, that they might all join together in a quiet and peaceable manner, to defend the cause, being common to them all; and therefore though some particular persons were sued, yet they might defend their suit upon their common charge. And the reason was, that since the title was one against all, it was in effect but one's defence, and one defendant; for the trial Buls. 1 R. 202. in one man's case tried all. And therefore the courts of Syder. 1 R. 51, justice do every day deny them to be witnesses one for

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