The Second part of Modern reports, being a collection of several special cases most of them adjudged in the Court of Common Pleas, in the 26, 27, 28, 29, & 30th years of the reign of King Charles II. when Sir. Fra. North was Chief Justice of the said court. : To which are added, several select cases in the Courts of Chancery, King's-Bench, and Exchequer in the said years. / Carefully collected by a learned hand.

Rose versus Standen.

IN Accompt for Sugar and Indigoe; the Defendant pleaded, that the Plaintiff brought an Indebitatus Assumpsit, a quantum meruit, and an insimul computasset for 100l. due to him for Wares sold; to which he pleaded Non assumpsit, and that there was a Verdict against him, and then averrs that the Wares mentioned in that Action are the same with those mentioned here in the Action of Accompt: The Plaintiff demurred, and it was said for him, that he had brought his former Action on the Case too soon; for if no Accompt be stated the Action on the Case on the Insimul com∣putasset will not lye, and so the former Verdict might be given a∣gainst him for that Reason.

But on the contrary, the Defendant shall not be twice troubled for the same thing; and if the Verdict had been for the Plaintiff, that might have been pleaded in Barr to him in a new Action.

But the Court were of another Opinion, that this Plea was not good, and that if the Plaintiff had recovered it could not have been pleaded in Barr to him; for if he misconceives his Action and a Verdict is against him, and then brings a proper Action; the Defendant cannot plead that he was barred to bring

such Action by a former Verdict, because where 'tis insufficient it shall not be pleaded in Barr; as in Debt upon Bond the De∣fendant pleaded another Action upon the same Bond, and the Iury found Non est factum; the Entry of the Verdict was that the Defendant should recover damages, & eat inde sine die, but not quod Querens nil capiat per Breve, so no Iudgment to barr him, 2 Cro. 284.

But pending one Action another cannot be brought, for they cannot both be true.

If no Accompt be stated the Action on the Case upon an Insimul computasset would not lye; the Insimul computasset implies an Accompt; and upon Non assumpsit pleaded, the Defendant might have given payment in Evidence, and for that reason the Iury might find for him. 'Tis true, he might have pleaded Plene computavit, which is the general Plea: But it may as well be presumed that the Verdict was against the Plaintiff, because the Action would not lye; and the Matter being in dubio the Court will intend it against the Pleader, he not having averred to the contrary, and so they held the Plea to be ill.

Notes

• Action where mis∣conceived by the Plaintiff, and Verdict against him no Barr to a new Action.
• Ex parte Def.
• Curia. 2 Cro. 284.
• Antea. Putt and Ro∣ster, Postea. Rosal and Lamper, Ante.