parts of that agreement, and so all parties were bound by it. (1) (1) Where money is delivered to one person to be paid over to another, the latter may maintain an action against the former to recover the amount, as upon an implied promise, although there be no privity between the parties. 17 Mass. 400, Arnold v. Lyman. Id. 575, Hall v. Marston. Generally he for whose benefit a promise is made, may maintain an action upon it, though the promise was made to another, and not to him. Com. Dig. Action upon the Case upon Assumpsit. E. [36 b] DRURY US. KENT. Q. Imped. waste in a Prohibition of waste may be granted on surmise of the plaintiff in a quare impedit. Prohibition of DRURY brought a quare imped. against Kent the incumbent and others; and upon surmise made to the court, that Kent did fell timber upon the glebe, and upon the lands of copyholders, holding of a manor parcel of the rectory, the court granted a prohibition. 11 Co. 49. a. b. Co. 98. b. N. N. B. 49. i. 11 B. 6. 9. 2 Ro. 813. PINE US. LEICESTER. The action of debt for the arrearages of a rent-charge, brought by the executor of the grantee against the assignee of the grantor, is local. Debt. [37] Debt for arrearages of rent is still local. Co. L. 162. a. Winch. 69. 4 HUGH PINE of Lincoln's Inn brought an action of debt in the county of against the Countess of Leicester, and declares that the Earl of Leicester, being seized Co. 49. b. in fee of the manor of Cleobury in the county of Salop, Latch. 197. granted a rent charge of 100 pounds per annum, out of the manor unto one Foster and his wife for their lives, and then lays the death of the lord of Leicester, and how the manor came to my lady, and then the death of Foster and his wife last. And now he, as executor to Foster and his wife, brought this action for arrearages of rent incurred in their life, while the manor was in the hands of the lady; and this action being laid in a county, where it was supposed Pine was strong, it was moved to be laid in a more indifferent shire. Whereupon I said, that for this kind of action 1 Saund. 238. accord. 1 Cro. needs be laid where 143. accord 184 104, 168. they were not well advised ; of debt was local, and must [37 α] 7 Co. 2. b. 1 Cro. 183. the land was, because the lady was not chargeable, but in respect of the possession; whereupon serjeant Harris, being not of counsel in this case, confessed it had been so adjudged in another case. (1) (1) Actions for the recovery of rent are founded either on privity of contract, or on privity of estate Privity of contract is that relation which is created by the contract itself, between the contracting parties, and their personal representatives respectively, and which subsists forever. Privity of estate is that relation which subsists between the tenant in possession of the term, and the reversioner, whether they were the original contracting parties or their assignees; and this relation is transferred whenever either the term or reversion is assigned. When the action is founded on privity of contract, it is transitory, and the venue may be laid in any county; but when it is founded on privity of estate, the action is local, and the venue must be laid in the county where the land lies. 3 Co. 22, Walker's case. 6 Mass. 331, Lienow v. Ellis. The case in the text was brought by the executor of the grantee of the rent-charge, against the assignee of the grantor. By the rule, therefore, it was local, being founded on pivity of estate only. But if it had been against the grantor himself, though by the executor or personal representative of the grantee, it would have been transitory, as being founded on privity of contract. It appears therefore that the action of debt for rent is sometimes local and sometimes transitory. When it is brought by the lessor or his personal representative against the lessee or his personal representative, it is founded on privity of contract and therefore transitory. It may be brought in England though the land lie in Ireland or Jamaica. 2 Stra. 776, Patterson v. Scott. 2 Salk. 651, Way v. Yally. 6 Mod. 194. S. C. 1 Chitty 275. But if the action be brought against the executor of the lessee, not merely in his representative character, but to charge him as assignee, for rent accrued in his own time, it is then founded on the mere privity of estate, and therefore local. 1 Chitty 275. So if the lessee or his executor assigns the term, the lessor, in case he has not accepted the assignee as tenant, may maintain an action of debt against the lessee or his executor, in his representative character, for rent accrued after the assignment, and such action being founded on the privity of contract, is transitory. But if the lessor has accepted of the assignee his tenant, by receiving payment of rent of him or otherwise, he not, afterwards, maintain such action against the lessor or his executor, because the privity of contract is thereby destroyed, as well as the privity of estate. Cro. Jac. 334, Marsh v. Brace. 3 Mod. 325, Coghill v. Freelove. 1 Saund. 241. n. (5.) 3 Co. 22, Walker's case. Cro. Eliz. 715, Marrow v. Turpin. as can But if an action of debt for rent be brought by or against the assignee of the term or reversion, it is then founded only on privity of estate and the venue must be laid in the county where the land lies. 1 Wils. 165, Thrale v. Cornwall. 2 Johns. Cases 335, N. York v. Dawson. And it will make no difference if the rent reserved is payable at the place where the venue is laid. Cro. Car. 183, Bord v. Cudmore. 2 Salk. 651, Way v. Yally. 6 Mod. 194. S. C. The action of assumpsit or debt for use and occupation is always founded on privity of contract and therefore transitory. 6 East 347, King v. Frazer. 1 Taunt. 570, Kirtland v. Poinsett. 2 Johns. Cases 355, N. York v. Dawson. The action of covenant also, when brought by and against the original parties or their personal representatives, is founded on privity of contract, and therefore transitory. 2 East 579, Stevenson v. Lambard. 1 Chitty 274. And such action may be maintained, on an express covenant, but not upon an implied one, and though debt cannot, after the lessee has assigned his term, and after the lessor has accepted the assignee as his tenant, even if the assignment was made at the lessor's request. Cro. Jac. 309, Barnard v. Godscall. Cro. Car. 188, Bachelour v. Gage. Sed vide Ham. on Parties &c. 129, et seq. So the action will be transitory if it be brought by the assignee of the reversion against the lessee. 1 Saund. 237, Thursby v. Plant; but if it is brought by the lessor or the assignee of the reversion against the assignee of the term, it is local. 1 Saund. 241. b. n. (6.) 1 Chitty 275. [376] CUMBERLAND vs. CUMBERLAND. Upon waste alleged in several towns, and several issues joined, one ven. fac. may be allowed to try them all; but such ven. fac. must arise from all the places whence all the issues arise, and from no more. Vide ante 5 b. Crow v. Edwards. A ven. fac. to try several issues cannot be good for part and void for part; and if erroneous through the fault of the court, will be disallowed by them, ex officio, without motion. Waste assigned in the declaration, in a town not named in the original, is an incurable variance, and abates the writ. 862. Waste by the countess of The Earl of Cumberland brought an action of waste 2 Ro. 667. Mo. against the Countess of Cumberland dowager, and laid the earl against the waste in the writ among other things in the castle of Cumberland, Burgeham, (but did no otherwise assign any town where amisse. 6 Co. venire facias 14. 5 Co. 36. ap. 284. Yel. the castle stood,) and other wastes in the towns of Burge- Yel. 26, 77, 178, ham, Flaxbridge and Appleby, and then in his declaration 182. 2 Cr. 8. assigned waste in the places and towns mentioned in the 187. writ; and one other town called Langton, not contained in the writ, whereupon eighteen several issues were joined, whereof one was concerning the reparation of the castle of Burgeham, and none concerning anything of Flaxbridge. And there was one ven. fac. for the trial of all these issues, which did arise from the towns of Burgeham, Appleby, and Flaxbridge. Whereupon after trial of these issues, whereof fourteen were found for the countess, and four for the earl, and motion made in arrest of judgment for mis-trial, by the counsel of the defendant, it was resolved by the court, though they were all several issues, and might be tried by several ven. fac., and then every ven. 2 Cro. 86. 3 Cr. [37 c] fac. should have come from the place where the particular issue did arise, yet in such cases as this, one ven. fac. 114,836. 2 Cro. was allowed to try them all, for avoiding of multiplicity; but then that ven. fac. must arise from all the places, from Mo. 862. 2 Cro. whence all the issues do arise, and from no more, as a com 550. 3 Cro. 866. post, 64. 289. 1 Cro. 491. Co. L. 125. b. 2 Cro. 239. 2 Roll. 618. mon ven. fac. for one issue ought to be. Now here the ven. fac. offended in both these; for the ven. fac. did not come inter alia de vicineto castri de Burgeham, for a castle will bear a venue but from the town of Burgeham, as if it must be understood to be in the town, which is not so, though a parish church shall be intended within the parish. The other fault was, that the ven. fac. was awarded from one town inter alia, from whence no issue did arise, which also was not allowable; whereunto the plaintiff's counsel gave these answers, that this ven. fac. though it were but one in facto, yet in the law and effect it was as several, and then it might be void and avoided for one issue, and yet stand good for other issues, wherein those F. N. B. 21 F. faults were not. And the rather as this case was, because 2 Saund. 46. Cr. 204, 435.5 39. 2 C.980 [38] Variance be these faults of the ven. fac. were concerning these issues only, that were found for the defendant, and she should not be received to assign fault or error in that made for her. Whereunto it was answered by the court, that the ven. fac. being one indeed, could not be made good in part, and void in part, and especially where a town was added to the ven. facias, which could not be applied more to one issue, than to another, and therefore was vicious to all; and being the fault of the court, was to be disallowed by them ex officio, though the defendant said nothing. The other fault was, that the assigning of waste in the tween the writ declaration in a town not mentioned in the writ, was a original and the declaration. 1 variance from the original, and a fault incurable to the Cro. 272, 281, whole writ, and the fault in the declaration remains, and 282. Jones 304. is to be pleaded in the abatement of the writ; whereupon judgment was given qd. cassetur bre., and the plaintiff resolved to take a new writ, and begin again. (1) (1) According to the modern practice, a plea in abatement on account of a variance between the writ and declaration, cannot be pleaded. It was always necessary, as a matter of form, preparatory to pleading such plea, to demand oyer of the writ, as the fact upon which it was founded could be ascertained only by examination of the writ itself. But both the courts of King's Bench and Common Pleas have established a rule that oyer shall not be granted of the original writ. Doug. 215, Boats v. Edwards, and note (a.) The indirect effect of this rule has been to abolish in practice all pleas in abatement founded on objections of this kind, in England. [38 α] Assumpsit. COPE US. LEWYN. A declaration by an administrator upon a promise to his intestate is not good without a profert of the letters of administration. (1) Secus if it be for a wrong done Tr. 12 Jac. Rot to himself as administrator; as in debt for an escape in his own time. (2) 1704. Letters of administra tion not proR. 9. Winch. duced. Brownl. 19. 20 H. 6. 1. a. 10 Co. 94. b. 6 Co. 38. a. 2 Cro. 409. ac COPE brought an assumpsit against Lewyn, and declared upon a promise made to the intestate, and then layeth the death of the intestate, and that the administration of his goods was committed to him by the bishop, &c. All well, saving that he did not say, that he produced his cord. Po. 218. letters of administration in court. Upon issue non as- 467. 52. a. 57. sumpsit, it was found for the plaintiff; and upon motion of 88. a. 9 Co. 24. Yel. 201. Plo. a. 149. a. 8 Co. b. 1 Bulst. 276. 9 Co. 41, 38. a. cord. Yelv. 33. post 233. ac Co. L. 225. a. Sid. 98, 249. 5 Cro. 360, 361, t Co. 31. b. 2 Hutton in arrest of judgment, the court was of opinion, 200. 25. a. 2 Cro. 299, 412, that the plaintiff could not have judgment, for it is of the 360. Dy. 135. substance of the action that he be a sufficient adminis- Plo. 277. a. trator, and though he hath pleaded it so, yet he must show it to the court, that it may appear to them that it is as he 3 Le. 551, 592. hath pleaded; as upon a plea upon a deed, the deed must be showed in court; and the defendant may deny the committing of the administration, notwithstanding that he hath letters. (1) Yet serjeant Harris produced a precedent out of the King's Bench, Trin. 12 Jac. where one post 218. 11 H. Barret brought an action upon the case against one Winch- 11 b. 20 H. 6. combe, sheriff of Oxfordshire, and declared, that whereas b. Ap. 272. upon an action of debt brought by him as executor to one 292. a. 285. b. (1) The omission of profert of letters testamentary or letters of administration, in declarations and pleadings by executors and administrators, is now aided by Stat. 4 Ann. c. 16. s. 1. unless the other party demur specially for the defect. In Massachusetts, executors and administrators do not make profert, in pleading, of their letters testamentary or letters of administration, and in an action brought by them, they do not set forth where or by what authority such letters were granted. 11 Mass. 314, Langdon v. Potter. If the defendant in such action would object to their authority, it must be by plea in bar, or abatement. Ib. 2 Mau. & Sel. 553, Thynne v. Protheroe. , 272. 16 17 Car. 2. cap. 8. post 264 Pod 6. 17. a. 9 H.6. 4. b. 5 Co. 31. Yel. 33. Plo. 8 E. 4. 7. 1 Inst. 124. a. Execu |