The common law epitomiz'd with directions how to prosecute and defend personal actions, very useful for all lawyers, justices of peace, and gentlemen : to which is annexed the nature of a writ of error, and the general proceedings there upon : with a plain table for the easie finding out of every particular / by William Glisson and Anthony Gulston ...

Assumpsit.

For the not doing of a thing which ought to be done by the agreement of the party to the damage of another, touching things hereditary.

* 1.1ASsumpsit is either by word, or deed Poll.

If it be by Covenant it lies, and needs not any consideration to be averred, 2 Hen. 7.11. 21 Hen. 6.55. for a Covenant supposeth a consideration, because it is a solemn act.

If it be by word, then it ought to be upon a consideration, otherways it is but Nudum pactum unde non oritur actio, for the other hath no wrong, though the promise be not performed.

A Consideration is a cause or occasion merito∣rious,* 1.2 requiring mutual recompence in deed or in Law; in Deed expressed in words; in Law not expressed, but created by Law, 16 Eliz. Dyer 336. B. pl. 34.

The Consideration is either expressed in words, or implied by Law; in every Contract there is an Assumpsit or promise implied by Law, Coke 4. part. 94. Slades case.

If it be expressed it ought to be shewed in the Count or Declaration, 3 Hen. 6.36. 11 Hen. 4.33.

A Consideration of a thing past is not good, Doct. & Stud. 104. B. except it be a continuing consideration and benefit to the party.

An Assumpsit may be made in the absence of another, if he will agree to it afterward, 27 Hen. 8.24. and it shall be all one as if it were made to the party. Quaere, whether he that assumed may not refuse before the other consent.

General Bar.

1. Concord pleaded, viz. after the Assumpsit made, Lib. Intr. 6. C. sect. 6.

2. Non assumpsit, and this a man may plead al∣though there is no consideration, Pasch. 26 Eliz. Ban. Regis; for if there was no consideration for the promise, it is all one as if there had been no such promise made.

But if the former were upon an entire sum upon two Assumpsits, then no bar, Trin. 14 Jac. Ban. Regis, Paine and Selley.

A good Bar that he promised upon Condition, which is not performed, Lib. Intr. 5. D. sect. 1. and so he is not bound to perform his promise, for the Condition is to be precedent.

Non emisses the Land of him, a good bar, Lib. Intra. 6. B. sect. 5. viz. an Action brought for mo∣neys promised to be paid upon a purchase of lives.

That the Plaintiff discharged him of the bar∣gain, a good bar, Lib. Intr. 685. C. sect. and so there could be no money due upon it.

* 1.3The Action lies, 1. against him that sells Land to me, and promises to make an estate, and doth it not, 3 Hen. 7.14. 14 Hen. 8.15. 21 Hen. 7.41. 2 Hen. 7.11, 12. 20 Hen. 7.9. 22 Hen. 6.44. 20 Hen. 6.34. Lib. Intra. 5. D. Sect. 1. and 685. B. sect. 1. the Writ, Lib. Intra 6. A. Sect. 2. for I am thereby prejudiced in my title to the Land.

2. Against him that sells Land to me, and pro∣mises to give me seisin of it, and does not, Regist. 112. A. for he hath consented to pass the Land by that kind of Conveyance.

3. A promises to convey Land to such a person as B shall name, and the Defendant shews, that he conveyed it to B, this is good; for it shall be in∣tended a nomination in B, insomuch that he did accept of it, Mich. 13 Jac. Com. Ban. Huligo and Wilde; for he might nominate himself as well as another.

4. Against him that first sells Land to me, and afterwards sells it to another, Lib. Intra. 685. B. sect. 1. Nat. br. 98. F. 20 Hen. 6.34. for I may be thereby troubled in my possession.

5. The same Law is, if he grant a Rent, and after∣wards infeoff me, not giving me notice of the Rent, 20 Hen. 6.34. for thereby my Land is charged.

Against one that promises to scour his Ditch,* 1.4 and doth not, by which my Land is drowned, 3 Hen. 6.36. and I damnified.

Against an Alien that brought Salt to London,* 1.5 and promises to the Major to pay so much as shall be due for Cranage, 18 Eliz. Dyer 352. pl. 27: and doth it not, for here is damage by the loss of the profit.

Against the Lessor that promises,* 1.6 that the Lessee

shall enjoy pacifice & quiete, and is expulsed by a Trespassor, 16 Eliz. Dyer 328. pl. 8. Q.

1. Against him that promises to amend his house,* 1.7 19 Hen. 6.49. and doth it not. Q. whose House.

2. For not building a House according to his promise, 2 Hen. 6.55. 21 Hen. 7.41. 20 Hen. 7.9. 14 Hen. 6.18. Nat. br. 145. G.

3. Against him that promises to cover a house, and doth it not, 3 Hen. 6.36. 14 Hen. 6.18.

4. A Leases a House to B at will, and in consi∣deration that he will permit him to enjoy it till such a day, he promiseth to keep A harmless from all damage, ratione inhabitationis & occupationis Messuagii praedicti, and for every farthing hurt he will satisfie 2 d. upon request: The Servant of B suffers the house to be burnt, 1. the Assumpsit ex∣tends to negligent waste, because it is a damage to the Lessor; 2. the Plaintiff ought to shew how many farthings he is damaged, or else he cannot recover two pence for every farthing; 3. he ought to request so many farthings due to him, and to demand two pence for every one in a gross sum; 4. upon the promise to the Tenant at will; 5. he needs not to averr, that he did there inhabit at the time, &c. for if he occupied it, it is sufficient; 6. by the assumpsit that B should have it until, &c. And it being a Lease for years, ergo the Action lies not, Mich. 9 Jac. Ban. Regis, Coventry & Woody. Q.

Against him that promises to purchase Land for me of B, and doth not do it,* 1.8 he is not excused though B will not sell it, 11 Hen. 6.18. 3 Hen. 7.14. for by his promise he is bound to do it at his peril.

But if he be retained and do his endeavour he is excused, 16 Hen. 6. Action upon the Case 44.

Against him that promises to make B. to release to me,* 1.9 and doth not, 14 Hen. 6.18. pl. 58.

For not doing of a thing which ought to be done by the agreement of the parties touching Chat∣tels.* 1.10

1. Against him that puts in Cattel without paying for the Agistment,* 1.11 Nat. br. 86. B. Regist. orig. 92. A. the Writ there; for here is not quid pro quo in recompence.

* 1.12Against him that promises to pay 10 l. a year for Land for four years, and fails of the first pay∣ment, Action lies presently, Coke 3. part. 22. A. Walkers case, 3 Mariae. Dyer 113. pl. 54. pro tanto.

* 1.13Against him that promises to cut Trees and carry them to my house, Regist. 109. B.

Against him that promises an agreement,* 1.14 and doth it not, Coke 5. part. 77. B. Sammons casee. Ne. Lib. Intra. 3. B. sect. 4. for the other thereby is de∣laied in his right.

A grants his term to B, if C agree, B promises 20 l. to C for his assent,* 1.15 this is a good assumpsit, Trin. 12 Jac. Com. Ban. in the case of Griesly and Louther; for the assent shall be intended to be for his benefit.

1. Against one that promises to re-deliver mo∣ney, and doth not, Lib. Intr. 10. sect. 1.

2. Against a Baily that takes upon him to keep Cattel safe, and doth not, Lib. Intra 9. A. sect. 1. & fol. 3. B. sect. 1. but they are lost by his negligence.

3. But if he promise to guard the goods, and after refuses, no Action lies, Doct. & Student.

102. B. if there were no consideration taken to do it.

1. Against a Carrier that undertakes to carry goods safe, and doth not,* 1.16 2 Hen. 7.11. Lib. Intra. 2. D. sect. 1. the Carrier is chargeable without such a promise per legem terrae.

2. Against him that promises to carry Wine, and breaks the Pipe by negligence, Regist. 110. A. for one man must not be prejudiced by anothers negligence.

So if Oyl be carried, Regist. orig. 112. A.

* 1.17Against him that promises 10 l. for the curing a poor man, Doct. & Student. 104. A. and pays it not.

For upon every promise, if the party be char∣ged with it, an Action lies, although the other have no benefit, Doct. & Student. 104. A. but there must be a benefit to some body.

Against him who promises to make a Coach,* 1.18 and doth not, Nat. br. 94. A.

But the Plaintiff ought to count, that he did give money for the doing it, other ways it is but Nudum pactum, unde non oritur actio, 3 Hen. 6.36. pl. 33. for there was not reason why he should do it.

* 1.19 A promises, if B will assist him in the gather∣ing of the Tithes of Cheese, and Apples, and other Tithes till such a time, he should have 20 s. and B shews, that he did assist him so long in the gathering the said Tithes, and good; for non constat that there are other Tithes, if there be they ought to be shewed by the other party, Mich. 7 Jac. Ban. Regis, Baker & Secker.

Against him that takes upon him to repair my Dove-house,* 1.20 and doth it ill, Regist. orig. 110. B. whereby my house becomes of less profit. A work ill done is accounted as not done.

Against him that promises to make a Cross,* 1.21 and doth not, Regist. 109. B. This Action it seems lies not at this day. Q.

* 1.22A promises to deliver a deed upon request, the request ought to be shewed precisely, otherways if it be of a thing due before, or upon a sale; for in the former case the request is traversable, but not in the latter, Pasch. 28 Eliz. Com. Ban.

* 1.23Against him that promises to pay me as much as the other owed him, if I will discharge him of the Prisoner, 27 Hen. 8.24.

* 1.241. Against a Smith that takes upon him to shoe my Horse, and doth not, 14 Hen. 6.18.

2. Or to cure him, 19 Hen. 6.49. Regist. orig. 119. B. but here must be a consideration prece∣dent.

It is not sufficient to do all he can, but he is bound to cure him: But upon a general retainer, without taking upon him the Cure, it is not so; for there the Law implies only, that he would do his best endeavour to do it, 43 Edw. 3.33. 45 Edw. 3.17. 48 Edw. 3.6. 27 Assize 56.

And the Writ shall not say contra pacem, 43 Edw. 3.33.

3. Quare tam negligenter & improvide imposuit medicinas, &c. quod equui mortuus est, 43 Edw. 3.33. pl. 38. 19 Hen. 6.49. for the Law punnisheth negligence.

1. Against a Ferryman that takes upon him to carry one over the water,* 1.25 and doth it not, and

this without consideration, because his fare is cer∣tain, 22 Assize 41. and recoverable by Law; for the Law makes the Contract.

2. For surcharging his Boat, by which my Beast is drowned, 22 Assize 41. Action upon the Case 40. for this is a misseasance.

An Administratrix desires to be forborn till such a time, and then she will pay the debt;* 1.26 this is a good assumpsie, Coke 9. part. 94. A. Banes case; and the Plaintiff needs not say in the Count that she hath assets, for it shall be intended; but it ought to be given in evidence, for she is not charge∣able if she have not quid pro quo, Coke 9. part. 92, 93, 94. Banes case, & fol. 90. B. Pinchons case.

The same Law is of a Strangers promise,* 1.27 Coke 9. part. 94. A. for though the Stranger it may be hath no benefit, yet the Plaintiff may be preju∣diced.

But then he ought to shew that the Plaintiff agreed to it, Mich. 39 Eliz. Com. Ban. Milwards case.

Then the Count ought to shew how the debt grew due, Coke 10. part. 77. A. Marshalsea; for if there were no debt, there can be no cause of A∣ction.

A counts that B was indebted to him in 20 l. but shews not how long; and that the 10. of Sep∣tember 7 Jac. B. promises, if the Plaintiff would not arrest him, but forbear till the 21. of Sep∣tember he would pay him; and sets forth, that he did forbear so long per Curiam: if the Plaintiff counts of the forbearance for a certain time, there it is good, without shewing when the debt grew due; but otherways when the forbearance is for a

time uncertain, Trin. 9 Jac. Ban. Regis, Dean & Nuby. Q. differentiam.

The Count was, that the Intestate was indebt∣ed to him in a 100 l. and the Administrator in consideration of forbearance for a reasonable time assumes to pay, and upon non assumpsit pleaded it was found for the Plaintiff; 1. Coke Chief Ju∣stice said, forasmuch as the Intestate was indebted, and the Administrator promised, &c. and pleaded non assumpsit, it shall be intended he had notice of the debt, therefore good; to which there was no answer: 2. forbearance by a reasonable time is a good consideration, because the Court may judge of it: but forbearance per paululum temporis is not good, to which the Court agreed, Trin. 14 Eliz. Ban. Regis, Lingill & Broughton; for the Court cannot judge of it, because it is incertain.

The Count was, that where A. was indebted to him in 32 l. for which he sued A. and that it was agreed between him and A. to stay the suit, and if he payed it not before Mich. he should give se∣curity; 1. he need not shew how the debt grew due, because the forbearance is the cause of Acti∣on, but otherways when the Testator is indebted and promises, for there the debt is the cause of the Action; 2. Coke Chief Justice, that he needs not shew, that he did surcease his suit, because it was but a reciprocal agreement; but if A. in con∣sideration that the Plaintiff shall surcease his suit promises to pay it, then he ought to shew that he did surcease, Pasch. 14 Jac. Ban. Regis, Fullers case; for that is the ground of the Action.

W indebted to B, delivers goods to L to pay him, L prays B to stay 2 or 3 days, and he will

pay him, L pays it not, B shall have an Action against L; for it is a good consideration, insomuch that L had goods to satisfie, Mich. 7 Jac. Ban. Regis, Brande & Lister, by his own confession implied in his assumpsit.

A pledges goods to B for money, and if A pay not at such a day, that B shall have the goods after and afore the day, &c. C requests B to for∣bear till another day and he would pay it, B may have an Action against C, if he pay it not; for if C pay the money, then he may have a Detinue against B for the goods, for by the payment C had a special property, Trin. 13 Jac. Ban. Regis, Capper & Dickinson; per Coke Chief Justice.

Against a Goaler that promises to the Sheriff to keep safe his Prisoners, and lets them escape,* 1.28 Regist. 110. A, & B. for the Sheriff is answerable for the safe custody of the Prisoners within his County.

Against him that warrants for 10 l. that my Boat shall come safe upon the Thames,* 1.29 34 Hen. 8. br. Action upon the Case 107. and it doth not; for there ought to be quid pro que.

A Leases to B rendering Rent,* 1.30 and paying all out-Rents and making reparations; the Lessor in consideration of this, promises defendere & susten∣tare statum & possessionem of the Lessee, quiete & pacifice absque interruptione; 1. here is a good consideration: 2. the said Clause amounts to so much as if he had said, that the Lessee shall quietly enjoy his Term, Mich. 7 Jac. B. R. Gamble & Terrell.

* 1.311. Against him that promises in Marriage 10 l. if he marry his daughter, No. Lib. Intr. 2. B. sect. 2, & 4. B. sect. 1. Doct. & Stud. 104. A. 16 Hen. 3. Prohi∣bition 22. for the Marriage is a good considera∣tion.

2. A being to marry B, C living with A. says to B, if she should marry A and his Father do not make such a Joynter to her, he would give her a 100 l. B marries A, the Joynture is not made, A and B shall have an Action against C; for perad∣venture the marriage had not taken effect, but in regard of the promise of C, Mich. 29 of Eliz. Ban. Regis.

3. A promises to B 100 l. in consideration that B marrie his Daughter; this is a good considera∣tion, insomuch that the advancement continues, being even as in Frank-marriage after the marri∣age is good, Trin. 29 Eliz. Ban. Regis, Marche & Rayneforde.

4. A promises to B, that whereas his Son was a Suiter to his Daughter, if B would give his as∣sent A would give to B 50 l. This is a good consi∣deration, 1. because the Daughter ought to have the consent of her Parents; 2. because the Son of A was to have advancement by the marriage, Trin. 12 Jac. Com. Ban. Greicely & Louther. Q. whether a man shall be intended to be advanced by marriage, except it be shewn.

5. A promises 50 l. to C, if he marries B. In an Action upon the case for the 50 l. he is not bound to shew that he did give notice of the marriage, neither to make request, Mich. 7 Jac. Ban. Regis, Brently & Tod; for A might as well take notice of the marriage as B, and the bringing of the A∣ction is a request in Law.

6. A having speech with El. Stukely about marriage with her, promiseth to M. the Daughter of the said Eliz. that if she marry him without disposing of her estate, he will give to M in mar∣riage

40 l. and in an Action brought upon this, insomuch that she did not averr in his count, that she had not disposed of her estate, it was not good, Mich. 15 Jac. Ban. Regis, Kings case; for that was the sole consideration.

* 1.32Against him that promises to obtain a Lease for me for 10 l. and gets it for himself, 3 Hen. 7.14. Quaere, whether an Action of Deceit doth not lie.

A in consideration of divers sums received of divers persons to the use of the Plaintiff amount∣ing to 24 l. assumes to pay this,* 1.33 and adjudged a good count, though he doth not shew of whom he received the sums, because this is not traversable, for it is a consideration executed, Trin. 14 Eliz. Ban. Regis, Beckingham & Lambert; for the Ac∣count is confessed by the promise to pay.

Counts that upon an in simul computasset the Defendant was indebted to him in 20 l. and pro∣mised to pay it, &c. Crook Justice said it was a good consideration; and Doderidge said, that in every Action of debt an Action of the case is implied, and when it appears how the debt grew due, then it is a good Assumpsit, Trin. 14 Jac. Ban. Regis, Cul∣limore and Eynison.

Against him that takes upon him to plant Thorns, and doth not do it,* 1.34 Lib. Intr. 13. C. sect. 1. for the planting may be for my benefit.

* 1.351. My Servant being in prison, I request his enlargement, and promise to save A harmless, an Action lies if I do it not; but without request not, 10 Eliz. Dyer 272. pl. 31.

2. If one become Bail for the Servant, and after the Master promise to save him harmless, an Action

lies not; for here is no consideration continuing Quaere, if he continue his Servant.

3. A being Bail for B in Ban. Regis, B promise to save him harmless; yet A shall not have a•• Action against B although he pay the money, i•• no Capias be awarded against the Principal, 〈◊〉〈◊〉 Scire facias against the Bail, Trin. 7 Jac. Ban. Regis. Bolles & Jones error upon Judgment in Com. Bu•• for here is no due proceedings in Law against ei∣ther.

4. A being indebted to B, prays C to be bound to B for the debt, and he will be bound to C, & C is bound to B, &c. A refuseth to be bound to C, C shall have an Action against A, for it is a goo•• consideration insomuch that C is liable to the d•••• Mich. 9 Jac. Ban. Regis, Knyvet & Pledall, and it 〈◊〉〈◊〉 reason A should secure him.

5. A promises to B to discharge him, and s•••• him harmless from all bonds in which he w•••••• bound for the Son of A, at the request of the s•••••• Son B. brought his Action, and shews that he 〈◊〉〈◊〉 fidei jussor was bound. 1. It is a good considera∣tion. 2. He ought to shew precisely that his S•••••• requested him to be bound, for although fidei ju•••••• imply a request, yet it is not sufficient, Pasch. 9 Jac. Ban. Regis, Somerston & B••rnby, & postea Mich. 〈◊〉〈◊〉 Jac. it is shewed that it was alledged, and for th•• judgment was given for the Plaintiff, Lib. Intr. 〈◊〉〈◊〉 C. Sect. 1.

6. An Infant borrows money,* 1.36 B is bound 〈◊〉〈◊〉 pay it, at full age the Infant promises to save his harmless, Action lies upon it; for although th•• Infant was not liable in Law, yet in Conscience 〈◊〉〈◊〉 was, and this sufficeth to maintain an Action upo••

the Case, which is an equitable Action; for the consideration is good, Trin. 29 Eliz. Ban. Regis ad∣judged.

A Widow promiseth for following her Suits to pay 200 l. this is not good;* 1.37 for it is maintenance per 2. Justices, but Dyer against them; because it did not appear that they were Suits in Law, 19. E∣liz. Dyer 356. and they may be Suits in equity, or at the Court.

A promises 10 l. to B,* 1.38 if he suffer C to enjoy the Land••; there although C enjoy it not, yet if A agree and do not interrupt C the Action lies, Pasch. 15 Jac. Ban. Regis, Taylor & Wilks; for he hath performed the consideration on his part.

A being a Copyholder makes B his Executor, and intends to surrender, to the intent that B should satisfie a debt to D; the Son of A promises A that if he do not surrender, but suffer the Land to descend, he will satisfie the debt, A dies, B shall have an Action against the Son; for it is a good consideration, Hill. 9 Jac. Ban. Regis, Gray versus Gray, yet continuing.

* 1.39A promises to pay to B, for his reasonable board for such a time as he shall be with him; B shews that he was with him ten months, and that 5 s. the month is reasonable, amounting in all to 50 s. this is good, Pasch. 30 Eliz. Ban. Begis, Floyd & Irish.

A being sick in an Inne, B promises to pay as much as shall be due for all necessaries that the Inn-keeper shall provide for A; yet in the Action the Inn-keeper shall say generally in the Writ

and Count, that he did provide necessaries from such a day, until, &c. in all to the value of 20 l. forasmuch as the promise was general, the Writ and Count is good though it be not particular. 2. It is inconvenient and dangerous to shew all things that he did provide, &c. the same Law is for: Physician per Doderidge Justice. Pasch. 13 Jac. Ban. Regis, Crips. & Baynton; for he may not remem∣ber all particulars, and so may mistake.

1. For money upon the sale of any personal things,* 1.40 33 Hen. 8 br. Action upon the Case 105, 110. 2 Rich. 3.14. Com. 102. upon an indebitatus as∣sumpsit; for the Law creates a promise.

For in every Contract there is an assumpsit im∣plied, Coke 4. part. 94. Slades case; the Count needs not shew, but saepius requifitus, Pasch. 28 Elis. Com. Ban. Q.

2. In an Action for money upon the sale of a thing, he needs not count that he was possest ut de bonis propriis, Trin. 7 Jac. Ban. Regis, Fitz Willi•••• & Blackman. viz. before the sale; for the Law im∣plies they were his, else he would not have sold them.

3. Against a Purveyor or Servant that bought goods for his Master, and promises payment, Dyer 230. pl. 56. 12 Hen. 8.12. Q. if it lies not also against the Master.

4. Against him that promises to a Baker to pay so much as he shall deliver in Bread to B, 29 Hen. 8.25. for it may be intended he gave B the Bread.

5. Upon a promise to pay for Cloth bought, i•• B doth not, 12 Hen. 8.12. for there he becomes i•• the nature of a Surety for the payment for it.

6. A brought an action, and shews that he sold a Horse to B at such a day, year, and place, to be payed at a day to come, and the Defendant ad tunc & ibidem ratione praemissorum assumes to pay, if, &c. B did not; this is nought, for the Con∣tract, and the giving of day to B, ne fuit ad instan∣tiam of the Defendant; but the Contract was compleat before, Pasch. 28 Jac. Ban. Regis, Farmer & Field, without any relation to the Defendant and his promises ex post facto, and grounded upon no consideration.

7. A promises to pay to B such sums of money as B shall disburse of his own money for Cloth, to the use of A the Defendant, this is a good con∣sideration: for by the buying of the Cloth the property was in A forthwith, Trin. 9 Jac. Ban. Regis, Moore & Moore; for it was bought for him.

8. A sold to B two ways of Barley for as much as he sold to others, the Plaintiff in the Action ought to count, 1. For what price he sold to o∣thers; 2. he ought to give notice of this to B. So if A promise to B 20 l. if he marry C, yet B ought to give notice of the marriage; but a Tayler may have an Action for as much as he shall deserve, and is not bound to give notice what he shall deserve, because it is not incertain, Hill. 13 Jac. Ban. Regis, Hall & Heminge. Q. for he must demand a certain sum, and this is notice.

1. Against a Seller of Corn to be delivered at a certain day, and doth not,* 1.41 21 Hen. 6.55. 20 Hen. 7.9.28 Hen 8. Dyer 22. pl. 138. & fol. 113. pl. 55. Coke 4. part. Slades case 94. B. Quaere, it no da∣mage appear.

2. For delivering good and merchantable Corn, and doth not, 6 Edw. 2.6. Dyer 75. pl. 23. Lib. Intra. 4. B. sect. 2. but special dammage must be alledged.

The Judgment.

For not delivering of grain yearly, quaere if the Plaintiff shall recover dammage as well pro tem∣pore futuro quam pro praeterito, 3 Mariae, Dyer 113. pl. 56.

Administratrix promises to pay a debt, &c. and the Action is brought against Baron and Feme, then the judgment against him shall be general, & praedictus P. & M. uxor ejus in misericordis, Coke 9. part. 93. Banies case, No. Lib. Intra. 2. C. Sect. 3.

But upon plea, that the Testator did not assume, costs and dammages shall be de bonis propriis, if the Testator had not suffici••nt, No. Lib. Intra. 1. B. sect. 1. for the false plea.

The Writ.

Upon assumpsit by the Husband and Wife, made to the Wife dum sola fuit, the Writ shall say, ad dampnum ipsorum; for the Husband shall have the dammages, ideoque fuit ad dampnum ipsorum, Hill. 9 Jac. Ban. Regis, Wolverton and his Wise against Day.

For not doing a thing which ought to be done by Agreement touching the body.

1. Against a Barber that takes upon him to raze the Beard,* 1.42 and doth it with an unwholsom Razor, Lib. Intra. 2. C. sect. 1. for the body is en∣dangered to be hurt thereby.

* 1.432. Against a Physician or Chirurgeon for not curing a malady, or not applying a medicine, 14 Hen. 6.18. 43 Edw. 3.33. 21 Hen. 6.55. 48 Edw. 3.6. pl. 11. Regist. orig. 105. B. 112. A.

3. For advising his patient to apply a certain medicine to cure him, and it did not, 19 Hen. 6.49. quaere.

For commanding his Servant to apply a medi∣cine, and he doth it not, 11 Edw. 4.6. Q.

4. For applying a medicine that impairs the Mayheme, 11 Rich. Action upon the Case 37.11 Hen. 6.18. pl. 10. 21 Hen. 6.55. B.

But note in all these cases he ought to take upon him the Cure absolutely, 19 Hen. 6.49. 48 Edw. 3.6. else the Action lies not.

The Writ.

The Writ ought to shew the place where he took upon him the Cure, 48 Edw. 3.36. for it is issuable.

If A promise to cure me in London, and apply unwholsom medicines in Middlesex, the Action shall be in Middlesex, because there was the wrong, 11 Rich. 2. Action upon the Case 37, and where the wrong is there must the trial be.

For not doing of a thing which ought to be done by agreement of the parties touching Suits in Law.* 1.44

Against a Clerk that promises to enroll a Deed,* 1.45 and doth it not, 34 Hen. 6.4.

* 1.46Against a Serjeant or Counsellor that promises to plead for me, and doth it not, 14 Hen. 6.18. if I retain him and give him his fee, else not.

For not doing of a thing where a man is bound to do it in one manner, and he doth it in another.

* 1.47Against him that promises to plough my land, and doth it in unseasonable time, 14 Hen. 6.18. 3 Hen. 6.36. for the Law implies he must do it for my best advantage.

Against an Attorney that takes an obligation in his own name,* 1.48 when it should have been in mine, 20 Hen. 6.25. Q. if an Action of Deceit do not lie.

Against a Carpenter that undertakes to build a house in such a form,* 1.49 and builds it in another, Nat. br. 145. G. 2. Hen. 4.9. 21 Hen. 7.41. 20 Hen. 6.35. Q. if he build it in a better form, and more for the benefit of the Owner, and to his own loss.

Against him that hath a Crane, and spoils my Merchandize,* 1.50 Lib. Intr. 3. C. sect. 1. this is mis∣feasance.

Against a Farrier that takes upon him to cure my Horse,* 1.51 and applies unwholsom Medicines, &c. 19 Hen. 6.49. whereby my Horse is made worse.

For pricking my Horse, 46 Edw. 3.2, 3.10. Nat: br. 94. D. 18 Edw. 3 6. pl. 11. for it is the duty of an Artificer to do his office well and truly; and this is implied in Law upon his undertaking to use his art.

For misusing a License,* 1.52 21 Edw. 4.76. quaere what.

Against a Serjeant at Law that is retained to plead, and mispleads,* 1.53 14 Hen. 6.18. for this is misfeasance, and to his Clients prejudice it may be, but if it be not tunc quaere. To misplead is to plead otherwise than he is instructed by his Cli∣ent.

For negligent suffering of a thing to be done to the damage of another.

A borrowed a Horse of me, which dies suddenly,* 1.54 an Action lies not, 40 Edw. 3.6. for the borrower was in no fault.

But if the thing be used in other manner than it was lent to be used, and dies, an Action lies, Doct. & Stud. 29. for this is misusing of it, and contrary to the agreement.

But if it be but in the same manner that it was lent, and dies, no Action lies, Doct. & Stud. 29. for it was lent to be used, though not misused.

A borrowed a Horse, and a House fell upon him; there if the house fell upon him being fee∣ble, Action lies, otherwise not, Doct. & Stud. 128. for he might have foreseen the danger, and pre∣vented it.

* 1.55Against him that keeps not well his fire, by which my house is burned, being adjoyning, 2 Hen. 4.18. 8 Edw. 4.19. pl. 30. Choke; for we

must so use our own that we hurt not another.

Although his own house be burned, 33 Hen. 6.1. Lib. Intr. 8. A. sect. 1. for his own harm is no recompence to his Neighbour.

3. It lies although his Servant do it: but not if a stranger do it of malice, 33 Hen. 6.1. 2 Hen. 4.18. Doct. & Stud. 137. for the Master must be answerable for the actions of his Servants in civil matters, though not in criminal.

4. If a Servant bring fire in the street and buro a house, his Master is not chargeable; for when the Servant is out of his house he is not under his government.

5. It lies not if it be burned suddenly, and the cause not known, 42 Assize 8.2 Hen. 4.18. for the Law delights in certainties, and doth things upon just and sure grounds, and not upon probabi∣lities and surmises.

Barr.

That it was not burnt in default of good cu∣stody of the fire of the Defendant, Lib. Intra. 8. A. sect. 1.

But by 28 Hen. 6.7. this is but a negative preg∣nant; for he might have pleaded non culp. which the other plea doth but imply.

That he guarded his fire well, absque hoc that he guarded it negligently, Lab. Intra. 8. B. sect. 2. for here is a direct affirmative, and a traversing of Plaintiffs declaration.

Against a Baily of Cloth, that suffers it to be consumed with Moths.* 1.56 27 Hen. 8.25.13 Hen. 7.1.18 Edw. 3.23. viz. by negligent keeping, which the Law implies he ought not to do.

Against a Baily of a horse that suffers him to perish, 12 Edw. 4.13.26 Hen. 8 br. Action upon the Case 103. Lib. Intr. 3. B. sect. 1. Regist. orig. 107. A. for the former reason.

For losing a Release, 34 Hen. 6.4. for the Re∣leasee may be prejudiced thereby.

So of a box, Lib. Intra. 9. A. sect. 1.

Against him that suffers his Dog to bite my sheep,* 1.57 28 Hen. 8. Dyer 25. pl. 102. & fol. 29. pl. 195. 28 Hen. 6.7. pl. 7. Lib. Intr. 616. B. sect. 1. Regist. orig. 110. B.

But then the Master ought to know that he would bite them, ibidem; for then he might have prevented it, and so is punishable for not doing it.

But sciens is not traversable; but may be given in evidence, Coke 44. part. 188. for if he did not know it he may plead Not guilty, and the Plaintiff must prove he knew it.

If the owner of the Dog brings him to the Master of the sheep to do justice upon him, it lies not, 7 Edw. 3. bar 290. viz. upon the first notice or knowledge of it, otherwise not.

The Plaintiff declares, that the Defendant was possessed of a Dog 8. Octobris 7 Jac. using to bite, &c. and that the Dog 12. October in the same year did bite his Lambs, &c. this is not good; for he ought to have shewn, that he continued his Dog at the time of the biting; for it shall not be pre∣sumed that he continued it without shewing it, Pasch. 9 Jac. Ban. Regis, Louder versus Sounds, 21 Edw. 4.22. 15 Eliz. Dyer 320. for the Law will not presume any one will do an unlawful act, ex∣cept it be proved.

4. For suffering his Dog to bite my Servant, Regist. orig. 111. A. per quod servitium amisit, else not, as it seems.

5. For hurting of an Ox, Regist. orig. 111. A. whereby he loseth his work, or is hindred in his fatting.

6. For hurting of a Horse after warning given, Regist. orig. 106. A. for the Master ought to have kept him up.

1. Against a Warden of the Fleet,* 1.58 that suffers one to escape that was taken upon a Capias ad computandum, 15 Edw. 4.19. Lib. Intra. 8. C. Sect. 1. for thereby the Plaintiff is put to more trouble and charge, and is delayed in his Suit.

2. Against a Sheriff, that suffers one to escape that was taken upon a Statute Merchant, Reg••••. orig. 98. B. Nat. br. 93. A. the Writ there, upon the same reason.

Against an Inn-keeper,* 1.59 that suffers the goods of his guests to be stole, Coke 4. part. 32. Calyes case, Nat. 94. B. Regist. orig. 104. A, 105. A. 22 Hen. 6.21. 42 Assize 17. for the Law of the Land binds him to keep them safe at his peril.

1. But note, 1. this ought to be a common Inne, and it shall be shewed in the Count, but not in the Writ, 11 Hen. 4.45. 22 Hen. 6.21. pl. 38. Coke 8. part. 32. Calyes case, Dyer 206. pl. 9.2 Hen. 4. Not in the Writ, because that is more short, & ren breviter enarrat; but the Count ought to express things more fully.

2. It ought to be a Traveller that lodges there, otherwise the Action lies not, Coke 8. part. 32. Calyes case; for the Law looks upon an Inn only

in respect of Travellers, for in respect of others it is no more than a private house.

4. He shall declare of nothing but what was within his Inn; for if he bid the Inn-keeper put his Horse to pasture, or put him to pasture of his own accord, unless the Inn-keeper request him to do it, it lies not, Coke 8. part. 32. A. Calyes case; for he is an Inn-keeper in respect of his House, and not of his Land.

4. He ought safely to keep the goods within his Inn at his peril, 42 Assize 17. for it is no ex∣cuse that he delivered the Key to the Guest, 42 Edw. 3.11. pl. 13. 11 Hen. 4.45. 22 Hen. 6.38. or that the Guest did not acquaint him with his goods, 42 Edw. 3.11. except the Guest will not trust the Inn-keeper, but will have the Key. Quaere.

Or that he knew not the Felons, 22 Hen. 6.38. A; for he must keep them safe against all persons, except forein Enemies.

But if the Companion or Servant, or any other that the Guest desires to lie with him, rob him, the Inn-keeper shall not be accountable, Coke 8. part. 33. A. Calyes case, 22 Hen. 6.38. B. 22 Hen. 6.22. A. for that was his own fault to admit of such Com∣pany.

Or if he say his house is full, and the other says he will make a shift, and be robbed, 5 Mariae, Dyer 158. pl. 32. for in such case he is not properly his Guest, nor takes any charge of him or his goods.

Or if he command him to put his goods in such a place, and he will not, but suffer them to lie in the open Court, 10 Eliz. Dyer 266. pl. 9. for if

he cannot be Master to order his house as he de∣sires, it is no reason he should be punished for the disorder committed in it.

And although the Writ is but bona & catalla, yet Evidences and all other Deeds are included: the Writ in this case shall be general, but the Count special, Coke 8. part. 33. Calyes case. Deeds and Evidences are bona & catalla, though not valuable to any person but the owner of them.

But an Inn-keeper shall not be accountable for wrong done to the person of his Guest, Coke 8. part. 33. A, & B. Calyes case; for this is a crimi∣nal matter, and hath no relation to him as an Inn-keeper.

1.* 1.60 Against a Shepherd, that suffers my sheep to be drowned, 2 Hen. 7.11. pl. 9. Coke 5 part. 13. B. Salops case. 12 Edw. 3.4.13. Dyer 121. pl. 17. B. Salops case. 12 Edw. 3.4.13. Dyer 121. pl. 17. by negligence.

2. Against a Ploughman that suffers my Corn to be spoiled, 7 Hen. 4.14. by negligence, or ig∣norance, as it seems. Q.

For Deceit in bargains and agreements with Warranty.* 1.61

1. The Warranty of a thing sold is the cause of an Action in case of vendition, as well as of cor∣ruption, 19 Hen. 6.9.

2. And the Warranty ought to be at the time of the sale, 15 Hen. 7.41, Nat. br. 98. L. and not afterwards, 6 Edw. 6. Dyer 75. pl. 28. else not good.

3. It ought to be by the owner of the thing, and not by a Stranger; and upon the sale by the owner, and not by a Servant, 11 Edw. 4.6.

for Warranty relates immediately to him that war∣rants.

It is not material whether the price be paid or not, for debt lies for it, 9 Hen. 7.21. pl. 2.

Against the Seller of a Horse that is sick,* 1.62 and is warranted sound, Nat. br. 94. C. 7 Rich. 2.42. Regist. orig. 108. A. Lib. Intr. 9. B. sect. 1. for this is deceit.

Or a lame Horse warranting sound, 31 Hen. 6.11. Statham.

A strained Horse it lies not, because the buyer hath the view, 13 Hen. 4.1. pl. 4. Hank ford. Q. if he warrant him sound.

Against a Seller of Cloth,* 1.63 that warrants it well sulled when it is raw, 11 Hen. 6.221.

Against him that warrants it of such a length, and this upon sale and warranty of the Servant, it lies against the Master, 11 Edw. 4 6. for it lies not against the Servant, ibidem, for the Cloth was the Masters.

Against him that sells grain,* 1.64 and warrants it to be good, Lib. Intra. 9. B. sect. 1. Regist. orig. 111. A. whereas it is musty or corrupted.

Against him that warrants Herrings,* 1.65 Regist. orig. 96. A. in the number and the goodness.

Against him that sells a Saphire instead of a Diamond,* 1.66 Kitchin 174.

Against a Seller of wood,* 1.67 and shews part, and warrants the rest to be good, 14 Hen. 6.22. pl. 66.

Against a Seller of corrupt Wine with war∣ranty,* 1.68 Nat. br. 94. C. 9 Hen. 6.35. 7 Hen. 4.14. pl. 19. that it is sound and wholsom.

If the Servant sold it by covin of the Master, Action lies against the Master, 9 Hen. 6.53. pl. 37. for it is the Masters act.

For deceits in Bargains and Agreements, without Warranty.

* 1.691. Against him that sells a Horse not sound, knowing him to be so without warranty, 20 Hen. 6.34. 13 Hen. 4.2. Kitchin 174. Q. for it seems it lies not; yet if it doth, it is because the Law hates deceit in Contracts, for it hinders Commerce, which is beneficial to the Commonwealth.

For selling an Horse to another that was not his own,* 1.70 42 Assize 8. Coke 4. part. 18. B. for this is fraud.

For selling Cloth that is nought,* 1.71 knowing it to be so without warranty, 21 Hen. 7.91. pl. 16. Crooke.

Against him that promises to deliver good Gum,* 1.72 and doth not, Mich. 7 Jac. Ban. Regis, Weston & Deighton.

Against him that sells Wine mixed with water,* 1.73 Nat. br. 88. F. for this is but part Wine, and so the buyer hath not what he paid for.

For uttering Corrupt victual,* 1.74 knowing it to be so, 19 Hen. 6.53. 22 Hen. 7.91. pl. 16. Crooke. 11 Edw. 4.6. B. Brian & Neal.

Against him that sells good Wax and delivers ill,* 1.75 6 Edw. 6. Dyer 75. pl. 18. Q. whether in all these cases an Indictment at the Common Law will not lie: It seems it will.

Notes

• * 1.1

  Assumpsit. Quid. Quotuplex.
• * 1.2

  Considera∣tion. Quid. Quotuplex.
• * 1.3

  To make an estate.
• * 1.4

  Ditch.
• * 1.5

  Cranage.
• * 1.6

  Lessor.
• * 1.7

  House.
• * 1.8

  Purchase.
• * 1.9

  Release.
• * 1.10

  Assumpsit.
• * 1.11

  Agistment.
• * 1.12

  Annual payment.
• * 1.13

  Trees cut∣ting.
• * 1.14

  Arbitre∣ment.
• * 1.15

  Assent.
• * 1.16

  Carrior.
• * 1.17

  Charitable deeds.
• * 1.18

  Coach.
• * 1.19

  Gathering Tithes.
• * 1.20

  Dove-house.
• * 1.21

  Cross.
• * 1.22

  Delivery of a deed.
• * 1.23

  Discharge of a Priso∣ner.
• * 1.24

  Farrier & Smith.
• * 1.25

  Ferryman.
• * 1.26

  Forbear∣ance.
• * 1.27

  Forbear∣ance.
• * 1.28

  Goaler.
• * 1.29

  Warranty.
• * 1.30

  Lessor.
• * 1.31

  Marriage money.
• * 1.32

  Obtains a Lease.
• * 1.33

  Payment.
• * 1.34

  Planting.
• * 1.35

  Save harmless.
• * 1.36

  Infant.
• * 1.37

  Sollicitor.
• * 1.38

  Sufferance
• * 1.39

  Tabling & Lodging.
• * 1.40

  Vendor.
• * 1.41

  Vendee.
• * 1.42

  Barber.
• * 1.43

  Physician or Chirur∣geon.
• * 1.44

  Assumpsit.
• * 1.45

  Clerk.
• * 1.46

  Serjeant. Counsel∣lor.
• * 1.47

  Plough my land.
• * 1.48

  Attorney.
• * 1.49

  Carpenter.
• * 1.50

  Cranage.
• * 1.51

  Farrier.
• * 1.52

  License.
• * 1.53

  Misplead∣er.
• * 1.54

  Borrowed.
• * 1.55

  Burning a House.
• * 1.56

  Baily.
• * 1.57

  Dog.
• * 1.58

  Escape.
• * 1.59

  Innkeeper.
• * 1.60

  Servant.
• * 1.61

  Deceit in Bargains.
• * 1.62

  Horse.
• * 1.63

  Cloth.
• * 1.64

  Grain.
• * 1.65

  Herring.
• * 1.66

  Saphire.
• * 1.67

  Wood.
• * 1.68

  Wine.
• * 1.69

  Deceit in bargain.
• * 1.70

  Horse.
• * 1.71

  Cloth.
• * 1.72

  Gum.
• * 1.73

  Wine.
• * 1.74

  Victual.
• * 1.75

  Wax.