action was brought to recover a sum directed to be paid by an interlocutory order of an inferior court. Although that order produced a moral obligation to pay, the Court of Common Pleas decided that it did not form any ground for an action at law. It seems to me, that in this case the decree, founded only upon an equitable obligation, does not furnish any foundation for an action at law. HOLROYD J. I am of opinion that this action is not maintainable. The decree does not affect to decide what was actually due, in point of law, on the balance of an account, but it merely directs what is to be paid on an equitable consideration. It is said, however, that the law will, in such a case, imply a promise to pay. In the case of judgments of inferior courts, and courts not of record, where the law implies a promise to pay, it is to pay a legal debt. Wherever there is a debt at law, the Court will presume that the party promises to do that which the law requires. When the debt is founded upon equitable considerations alone, it may be enforced by the authority of the Court which ordered it to be paid. The law, in such a case, does not imply a promise. There is no instance of an action brought on a rule of Court for payment of money. The mode of enforcing such an order is by attachment, for contempt in Now, although not obeying the order of the Court. ment 1819. CARPENTER against THORNTON. 1819. CARPENTER against THORNTON. ment of the money which may be awarded: unless that be done, the award is invariably enforced by attachment. In Tremenhere v. Tresillian (a), it is said that upon such a rule an action might be maintained. In such cases, however, the rule is made with the consent of the parties: and when they consent to the rule, they consent to the submission, and the breach of that submission is the foundation of an action. Although the parties, by entering into the rule, may have subjected themselves to the further obligation of obeying the order of Court, the neglect of which may be punished by attachment, yet the breach of the submission is the ground of the action. Admitting, however, that an action might be maintained on a rule of Court made with the consent of the parties, it by no means follows that an action will lie upon a rule of Court obtained in invitum. Such an order does not constitute a legal debt, which alone the law will imply a promise to pay. This decree of the Court of Equity does not, therefore, constitute such a debt. It must, therefore, be enforced by the Court which made it, and is not the subject of an action at law. BEST J. The object of this action is to enforce a mere equitable demand, founded upon an order of Court. Now, in Fry v. Malcolm, the Court of Common Pleas were of opinion, that an action was not maintainable upon an order of Court for the payment of money. It seems to me, that the principle of that case applies to the present, and consequently that there must be judgment for the defendant. Judgment for the defendant. (a) 1 Sid. 452. 1819. CUMING against HILL. (a) ACTION of covenant on an indenture of apprentice- Abraham, in support of the demurrer, cited Branch v. Ewington (b), and Bayly, contrà, being then called upon by the Court, admitted that he could not support the plea. ABBOTT C. J. I am of opinion that the father is liable to this action. He covenants that the son shall faithfully serve; the avoidance of the apprenticeship by the son during the term, cannot discharge the father's covenant. The indenture of apprenticeship has existed (a) This case was argued at Serjeants' Inn. (b) 2 Doug. 518. Saturday, Covenant upon apprenticeship, an indenture of against the father; breach, by the master that the appren tice absented himself from the service plea, that the son faithfully served till he came of age, and that he then avoided the indenture: Held, that this was no answer to the action. 1819. CUMING against HILL. in this form for more than a century, and has been in universal use. A construction has been put upon the instrument in a court of law, in the case cited from Douglas. I do not see any reason to doubt the propriety of that decision, and I think, therefore, upon principle as well as upon authority, that the defendant is answerable in this action. BAYLEY J. I may bind myself that A. B. shall do an act, although it is in his option whether he will do it or not. The father here binds himself that the son shall serve seven years. It is no answer in an action brought against the father, for the breach of that covenant, for him to say, that it was in the option of the son whether he would serve or not. If the son does not choose to do that which the father covenanted he should do, the covenant is then broken, and the father is liable. HOLROYD and BEST JS. concurred. Judgment for the plaintiff. Saturday, November 6th. GREEN against DAVIES and Another. (a) A justification TRESPASS for breaking and entering plaintiff's in trespass stated, that by custom, a court had, from time imme dwelling-house, situate in the parish of Swansea, in the county of Glamorgan, and taking plaintiff's goods morial, been holden before the steward and port-reeve of a borough, or their sufficient deputy or deputies, and that a court was holden before C. D., the deputy of A. B., who was then steward and port-reeve: Held, that upon this plea the two offices must be taken to have been compatible, and that the appointment of the deputy by the person holding both offices was sufficient. (a) This case was argued at Serjeants' Inn. and and chattels. Plea first, not guilty; secondly, that the borough of Swansea is an ancient borough, and that in the said borough there is and from time immemorial hath been a Court of Record, called the Court of Pleas, for the trial and determination of all personal actions and pleas personal, arising within the borough and jurisdiction of the same court, there held and to be held in the borough on Monday in every three weeks, and that the said court is and from time immemorial hath been held before the steward and port-reeve of the said borough, or their sufficient deputy or deputies. It then stated, that at a court of record holden at Swansea, of the said Court of Pleas, within the jurisdiction of the court, according to the custom of the court, time out of mind used and approved of in the said borough, on or before W. Grove, esquire, then being the deputy of Robert Nelson Thomas, who then and before, and at the time of the judgment, until and upon the execution of the writ, in the action thereinafter mentioned, was the steward and port-reeve of the borough aforesaid. The plea then justified the trespass on a fi. fa. out of that court. To this plea there was a special demurrer. Littledale, in support of the demurrer. This court had no jurisdiction, and consequently trespass will lie. It appears from the plea, that the court is to be held before the steward and port-reeve, or their sufficient deputy or deputies. Two persons, therefore, who fill certain offices, must compose the court; they may, however, concur in appointing one deputy, or each may appoint a separate deputy; where the principals hold the court, it must be held before two persons; no usage or custom is alleged that the court can be held before 1819. GREEN against DAVIES. |