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HERRENDEN vs. PALMER.

[88 a]

Assumpsit upon promise. v Hill. 1655. Checq. Cham.

Conge and

A demand against a person on his own personal liability, and another demand on his liability in his representative character, cannot be joined in the same action. HERREDEN brought an assumpsit against Margaret London. Palmer, administratrix of her husband, and declared that her husband had bought of him gold and silver and pearl, and was indebted unto him for them 200 pounds, Rot. 2521. and she, after his death, had likewise bought of him pearl, Lawe's case, &c. Sty. 472. for 27 pounds, and that upon accompt she was found Jenk. Cent. indebted both those sums unto him, and promised payment. Judgment for the plaintiff; and assigned for error, 87. a. Ap. 184. that the defendant was to be charged by two several Cr. Jac. 110, actions, because she was charged in two manners, one in ber own right, and the other as administratrix, and therefore the judgment was reversed. (1)

(1) So a count on a promise made by the defendant, as administrator, for money received by him, or lent to him, or on an account stated for money due from him, as such, cannot be joined with a count on a promise made by the testator. 4 T. R. 347, Jennings v. Newinan. 1 H. Bla. 108, Rose v. Bowler. 2 Bos. & Pul. 424, Brigden v. Parkes. 12 Johns. 349, Myer v. Cole. And a count in assumpsit against husband and wife who was administratrix, upon promises made by the intestate to pay rent, cannot be joined with counts upon promises by the husband and wife as administratrix for use and occupation after the intestate's death. 3 Barn & Ald. 101, Wigley v. Ashton. But a count in assumpsit on a promise made by the intestate may be joined with a count upon an account stated with the administrator, as such, for money due from the intestate. 1 H. Bla. 102, Secar v. Atkinson. Foster 98, Ellis v. Bowen. Ex'r. 6 Johns. 119, Whitaker v. Whitaker. 8 Johns 440, Carter v. Phelps. See also 10 East 313, Wilson v. Wiggs. In 1 Chitty 206, an opinion is expressed that a count upon an account stated by an executor as such, of money due from him as such, may, at the present day, be joined with a count on promises by the testator; but the authorities are the other way.

A misjoinder of counts is a fatal objection on demurrer, in arrest of judgment, or on error. 4 T. R. 347, Jennings v. Newman. 1 H. Bla. 108, Rose v. Bowler. 2 Bos. & Pul. 424, Brigden v. Parkes. 5 East 150, Henshall v. Roberts. 12 Johns. 349, Myer v. Cole.

As to what causes of action may or may not be joined, see Archbold's Civil Pleading 172. 1 Chitty 200. 2 Williams, Saund. 117. b. n. (2) where the result of all the cases is said to be that whenever the same plea may be pleaded and the same judgment given in all the courts; or whenever the counts are of the same nature and the same judgment is given on them all, though the pleas be different, as in the case of debt on bond and on a mutuatus, they may well be joined,

296. Mo. 419.

Cr. El. 406.

Noy. 19. Co. 8.

220
[88 b]

NICHOLS vs. RAYNBRED. BRINSLEY US. PARTRIDGE.

Assumpsit.
Suff.

Jenk. Cent.

296. 4 Co. 91,

17, 38. Ben.

150. Dy. 30. a.

Yelv. 134.

4 Leo. 3. 3 Cro.

543. Promise for promise. Post. 106.

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 plaintiff in both courts, that the plaintiff need not to aver 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.-lb. 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.

1 Cr. 116. 2 Cr. 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. Indebitotus 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.

Ant. 82. Jenk.

Cent. 297.

2 Ro. 396.

RICH brought an ejectione firme 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, 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 Ro. 617.

2

Cro. 282. Plo.

191. a.

Visne.

Want of it in

hurts not where

Note, here is a trial without a visne, if the jury were 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.

Ante. 82.

[89 a]

Ebor.
Case.

Action lies for slander to many not

named but signified.

Jenk. Cent.

297. 1 Roll.

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

FOXCROFT vs. LACY.

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 de22350. fendant denieth the words; and found for the plaintiff, and 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,
Dy. 19. Styl.
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.

BAYLE US. 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 Mo. 298. Dy. severally as amounted in the whole to sixty, that the defendant did promise to pay him a certain sum, for the

297. 2 Cr. 247, 569. Yel. 5.

55. b. 2 Cr.

[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 Assumpsit for 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, lb. 569, that decision seems to be overruled. And in M'Quillin v. Cox, 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 US. OWEN.

[90]

Checq. Chanr.

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

[ocr errors]

Error in execu

tion. Jenk.

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 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 que fuerunt prædicti Edwardi, &c. And for this judgment was reversed quoad adjudicationem executionis, upon the elegit, and yet the

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