Page 243
Child against Guiat.
Hill. 1650. Banc. sup.
Hill. 1649. rot. 153.
IN an Action upon the Case upon an Assumpsit made by the Defendant to pay the Plaintiff a certain sum of money, at a certain day.* 1.1 Vpon a spe∣ciall verdict, The question was whether there were a variance between the promise, and the Declaration, which question grew from the doubt, whether the day of payment in the Assumpsit shall be intended according to the old stile, or according to the new, for if it were intended one way there was no variance, if the other way there was a variance. Hales held that there was no variance, and though there should be, yet he said the Plaintiff ought to have Iudgement; because the time in this case is not material, for the debt for the payment whereof the promise was made, appears to be due up∣on an Accompt made between the parties, which time is past, and grows not due upon the Assumpsit, for this is no new promise in Law, and it is all one here as if the promise had been set forth that he promised to pay, when he should be thereunto required. And whereas it hath been objected, that the debt upon the Accompt appears to be due by two, and that the Action therefore ought to have been brought against them both, and not against one of them as it is here, he answered, that the Action may be brought a∣gainst both, or any one of them at the election of the party, and the custom of Merchants makes no difference in the case, for the Law creates the debt and makes both lyable, though the custom give election to sue one or both of them, and so one may here be sued, for the debt is by the custom trans∣ferred upon one, although it be the debt of both. And here both the dayes, viz. according to the old stile, and according to the new were past before the action brought. Roll chief Iustice held,* 1.2 that the Plaintiff ought to have Iudgement; but that day shall be taken according to the old stile,* 1.3 if there be not a speciall averment to the contrary, and so there is variance between the pleading, and the verdict; but this doth not hurt here, for the Action doth not fail, although the day be limited upon the evidence, otherwise than it is in the Declaration, for the debt is the duty arising upon the accompt made between the parties,* 1.4 and the day upon the Assumpsit for the payment is not material, for the Action lies though no Assumpsit had been made,* 1.5 and here is no need of an actual promise; But if an Assumpsit be made upon a contract, there is no precedent duty, and so there is a difference between one case and the other. And if two be found in arrearages of accompt,* 1.6 by the custom of Merchants one may be charged to pay all the debt as well as both. Ierman Iustice as Roll, and said, that where the day is part of the contract, it ought to be alleged to be past at the time of the Action brought: but it is not so here, and also both the dayes are here past. Nicholas to the same purpose, Roll chief Iustice, If the Action be specially laid, and the day made part of it, there if the Plaintiff fail in the day, his action also fails. And if one declare generally for 100 l. upon an indebitatus, and it appears upon the e∣vidence, that the Defendant did owe the Plaintiff but 10 l. yet the Plaintif shall recover; But if the Plaintiff declare specially,* 1.7 viz. for a horse sold for so much, and by the evidence it appears he owed a lesse sum, there the Plaintiff shall not recover, for it shall be intended another contract, and not that, upon which the Action is brought, and so Iudgement for the Plaintiff