Fowke and Prescott.
Trin. 1655. Banc. sup:
FOwke brought an Action upon the case upon a promise against Prescott. The Case was this,* 1.1 Prescott being a Coachman did by careless driving of his Coach break a pipe of wine of Fowkes which lay in the street, where∣by much of the wine ran out; and was lost: Fowke apprehends the Coach∣man, who thereupon promiseth that if he would for bear to sue him for the wine, that he would pay him as much as he had damnified him, and for breach of this promise he brings his Action, and obtains a verdict against the Defendant. It was moved in Arrest of judgement, 1. That the Plain∣tif had not averred how much the wine was worth that was spilt, and so he could not tell what satisfaction to make the Plaintif for it,* 1.2 for he knows not the value.* 1.3 2ly. Here doth not appear to be any request made for the satisfaction by the Plaintif. Serjeant Twisden answered, Here doth ap∣pear to be an apparent damage, and he hath not satisfied the damage we have laid in our Declaration, nor hath the Defendant pleaded any tender of damages at all,* 1.4 and the Iury have found the damages. 2ly. We say that we have forborn to sue him, and this implies no satisfaction made at the time of the Action brought. Alleyne on the other side, The Plaintifs Declaration doth not intitle him to the Action, and the finding of the Iury cannot make this good. Glyn chief Iustice, Both parties did see the wine, and the Defendant is bound to take notice of the damage, and the Plaintif is not bound to give him notice,* 1.5 and the Iury hath made it cer∣tain, Therefore let the Plaintif have his judgement.