Mich. 22 Car. Banco Regis.
Ann Bafeild Administratrix versus Collard. 22 Car. Rot. 673.
IN an Action upon the Case the Plaintiff declares, Assumpsit sur mutual promise to pay A. 100 li. A. may have the Action, so may the Party or his Administrator. That upon communication of a Marriage to be had betwéen the Intestate's Daughter and the Defendant's Son, it was agréed, That the Intestate should give the Son 50 li. with his Daughter, and that if the Daughter survived the Son, the Defendant should pay her 100 li. after his death, and mutual promises were made betwéen the Intestate and Defendant to perform the Agréement, and shews that the Marriage was had, and that the Intestate paid the 50 li. and died, and that the Son died, and assigns breach in the Defendant's non-payment in retardat' administrat' &c. and upon non assumpsit it was found for the Plaintiff: And Maynard moved that the action ought to have béen brought by the Daughter, for it has béen adjudged that it lieth for her upon such a promise, and so the Defendant should otherwise be doubly charged; but upon good debate, judgment was given for the Plaintiff, for the consideration moved from the Intestate, and the promise was made to him, yet it was agréed that it might be brought by the Daughter; 27 H. 8. Husband brings the Action in his own name upon promise to the Wife and lays the promise made to himself. 24. Tatam's Case Where upon promise to the Wife that if the Husband would release Tatam out of execution, the Defendant would pay the debt; the Husband alone brought the action, and layed the promise made to himself, and recovered.
And the Court, in retardat' administrat' was good enough, though the money was to be paid to the Daughter, because it was a duty to the Intestate, and the damages recovered will be assets, however it was but form, and well enough; and Roll said that the very point in the principal Case was adjudged Pasc. 5 Jac.. Betwéen Ashdall and Bernard: And Bacon, cited 44 Eliz. Rippon and Norton's Case, Promise to the Father that, &c. the Son brings the Action. where the Defendant's Son made an assault upon the Plaintiff and his Father, and the Father was going to a Iustice of Peace to complain, and have a Warrant for him to bind him to the Peace; the Defendant in consideration that he would forbear to complain, promised the [Page 2] Plaintiff that his Son should not assault him any more, and upon forbearance and a new Assault the Plaintiff brought his Action, and recovered; for the consideration moved from the Son, who should have béen secured from Assaults, if the Complainant had procéeded; and it was resolved here that there needed no notice of the death of the Son.
Etheringham versus Etheringham.
A Will torn in pieces with Rats, if a Stranger by laying the pieces together could make the devise appear, good: if gnawn before the death, against the Will.IN an Eject' firm' upon a tryal at the Bar the Evidence was that one Warner by his Will in writing devised the Lands in question to Henry Etheringham, and the Heirs males of his body, and bailed the Writing to the Scrivener to kéep, and four years after died, and about a fortnight after his death this Writing was found in the Scrivener's Study, gnawn all to pieces with Rats, yet he with the help of the pieces, and of his memory and other Witnesses, caused it to be proved in the Ecclesiastical Court; and now the Court demanded of the Witnesses, whether a Stranger that knew not the Contents of the Will before, by joyning of the pieces together could tell that the devise of the Lands in question was to Etheringham, and the Heirs males of his body; for they did agrée that if this clause could be made out, though by joyning of the pieces, it were a good Will, for all that. But the Witnesses said that a Stranger could not make out that clause. Whereupon the Court directed the Iury, that if they found that the Will was gnawn before the death of the Devisor, then 'twas for the Plaintiff; if after, for the Defendant; and the Iury found for the Defendant in favour of the Will.
Markham versus Adamson.
Words, I accuse you to be a Witch, &c.IN Slander, The Defendant said to the Plaintiff, I accuse you to be a Witch; and the next day said, I desire to have you searched; the Plaintiff asked, why would you have me searched? the Defendant said, because I accuse you to be a Witch; [Page 3] and after a Verdict for the Plaintiff, judgment was given against him, because the words did not import an Accusation of any offence within the Statute. But it was agréed that if the Plaintiff had béen accused of bewitching a Man or a Beast, though this were not Felony by the Statute, the Action would have lain, and so hath it béen adjudged.
Newman versus Zachary.
ACtion sur le Case The Plaintiff declares that the Defendant was his Shepherd, and that two of his Sheep did estray, Action sur le Case for his false practice creating trouble, &c. to the Plaintiff. one of which being found again, the Defendant affirmed to be the Plaintiff's, whereupon the Plaintiff paid for the feeding of it, and caused it to be shorn and marked with his own Mark; and yet afterwards the Defendant malitiose machinans to disgrace the Plaintiff, and knowing the said Sheep to be the Plaintiffs, falsò & fraudulenter affirmavit to the Bailiff of the Manor that had waifs and strays belonging to it, that this Shéep was an Estray: whereupon the Bailiff seised it to his damage, &c. And after a Verdict for the Plaintiff Latch moved that there was no cause of Action, for there is no breach of trust in the Defendant as Shepherd, and his words cannot endamage the Plaintiff, for he shall have his remedy against the Bailiff of the Manor that seised the Shéep wrongfully. But it was adjudged that the Action would lie, because the Defendant by his false practice hath created a trouble, disgrace and damage to the Plaintiff; and though the Plaintiff have cause of Action against the Bailiff, Upon slandering a Title though the party hath remedy vers. Trespasser, yet Action lies against him that caused the disturbance. yet this will not take off his Action against the Defendant in respect of the trouble and charge that he must undergoe in the recovery against the Bailiff, and Hales said that if one slander my Title, whereby I am wrongfully disturbed in my Possession, though I have remedy against the Trespasser, I shall have an Action against him that caused the disturbance.
Sir Thomas Bowe's Case.
If Lessee for years hold over and pay his Rent quarterly, that makes a Tenant at will. 21 H. 7. 38 E. 14 H. 8. 11. f. Dyer 62 a. 173.IN Debt for Rent upon a Lease at Will of Houses in London, upon a Trial at the Bar touching the Title of Sir T. Bowes, it was agréed and given in charge to the Iury by Roll, that if Tenant for years holds over his term, and continue to pay his Rent quarterly as before, that this payment and acceptance of the Rent amounts to a Lease at Will.
Ten. at will begins a new Quarter over shall pay the Rent Inst. 56. 69. 13 H. 8. 16. a. Kel. 65. 6.2. That if Tenant at Will rendring Rent quarterly begins a new Quarter, and voluntarily determines the Will before the Quarter ended, yet he shall pay the Rent for that Quarter.
Evely versus Livermore H. 17 Car. Rot. 1409.
Stat. 3 Jac. that does not extend to a special Action upon his promise and to give a Ticket of his charges.IN an Assumpsit the Plaintiff declares that the Defendant reteined him as his Attorney to follow his Causes in the King's Bench, Chancery, and Court of Request, and gave him so much in hand to defray his charges, and promised to pay him what more he should lay out, and alledges that he layed out 10 li. more then he received for Fees of Counsel and other charges in the Defendants Suits, which the Defendant hath not paid, &c. The Defendant pleads the Statute 3 Jac. 7. that the Plaintiff did not give a Ticket to him of his charges, &c. and after demurrer it was adjudged for the Plaintiff, for the Statute doth not extend to a special Action upon a promise, and so it was adjudged in Dobbins his Case.
Farrer versus Bates P. 22 Car. Rot.
Arbitrement, Debt and other Controversieslie in Arbitrement though Debt solely does not.IN an Indebitatus Assumpsit for 9 li. upon an Insimul computaverunt, the Defendant pleaded a submission of all actions and controversies to Arbitrement, and that the Arbitrators [Page 5] awarded that the Defendant should pay the Plaintiff 4 li. in satisfaction of all Accounts, and upon issue quod non se submiserunt Arbitrio, it was found for the Defendant, and upon motion in arrest of Iudgment it was agréed, Where Arbitrement is no plea in Debt, it is no plea in an Assumpsit upon the Debt. that though Debt it self doth not lie in Arbitrament, yet that and other Controversies doth. 10 H. 7. 4. & 4 H. 6. 27. But it was likewise agrréed that where Arbitrament is no plea in Debt, it is no plea in an Assumpsit upon the Debt.
2. Where it does not reach the thing demanded. It was resolved that the Arbitrament did not reach the thing demanded, for that was only of all Accounts, and this is a duty upon the Account, and so the Defendant could have no Iudgment: then it was moved to have a Repleader, Repleader denied. but denied by Roll being then sole present.