Jurisdictions, Part 138
Action upon the Caſe.
Action upon the caſe in Court baron, and other Court, and firſt for ſlander.
IT lies for calling one traytor, felon, and robber of the Kings people, and that is to be noted in Iuſtice Seatons caſe, 30. Aſſ. 19.
22. Book of aſſ. 43. preſentment, that one a is common Malefactor, or a common thief, or a common Baretor, is not certain, and is not good; and ſo it is thought by divers, to ſay that one is a common malefactor, or a common baretor: this action doth not lie, for it is too general.
2 Ed. 4. fol. 5. For calling one villain, it ſeems that action upon the caſe doth not lie.
17 Ed. 4. fol. 3. Saith there, that an action upon the caſe doth not lie, for calling the Plaintiff villain without more.
Nat. Bre. fol. 55. There are two deſamations or ſlanders, the one ſpiritual, the other temporal: temporal where he cannot be puniſhed by the ſpiritual Law, as to ſay that the Plaintiff is out-lawed of murder, conſpiracy, forging of deeds, &c.
30 H. 8. tit. 104. Lyeth for calling the Plaintiff perjured man; for now perjury is puniſhable in our Law by the Statute of 5. Eliz. yet inquire, for that it is not in what Court or cauſe he was perjured.
Regiſter fol. 54. For calling the Plaintiff Adulterer or Uſurer, Defendant ſhall be puniſhed in the ſpiritual Court, and there doth not lie an action upon the caſe.
4. Ed. 6. tit. 112. Lies for calling the Plaintiff a falſe Juſtice of Peace.
27 H. 8. fol. 13. It lies for calling the Plaintiff theif, and inditing him of felony, and note the words of the writ are, that he is hurt in his goods, his name, fame, and condition.
26. H. 8. fol. 11. For calling the Plaintiff Thief, and ſaying that he hath ſtolen ſheep of one I. S. It lies.
17 Ed. 4. fol. 3. Lies for writing ſlander in a paper, by which he durſt not go about his buſineſs.
27. H. 8. fol. 17. For calling the Plaintiff Heretick, and one of a new learning, it doth not lie.
Book of entries fol. …2. A preſident there, in an action of the caſe, for calling the Plaintiff falſe man; but inquire if it lies, for there was not there exception taken: and there is there another preſident for calling the Plaintiff theif, and ſaying he hath received 20 l. value of his goods.
In the Book of Entries, fol. 13. there is another preſident of an action upon the caſe, that a certain Letter or Bill, with divers ſlandering words, and defaming, in the ſaid Bill or Letter he cauſed to be writ.
It was the opinion in the Kings Bench, that for calling the Plaintiff Rogue, Cozener, or villain, action upon the caſe doth not he; for you ſhall not have action upon the caſe, for every word of anger reproachful; for it is ſaid, that (Scandulum) is a Greek word, which goes to the overthrowe of one, and for that it hath been thought, that if the words intend to the deſtruction of the Plaintiff, that he ſhall have an action upon the caſe, and for that where the Defendant ſaith, that the Plaintiff was infected with the robbery of Jerom, H. and ſmels of it, the opinion was, that action upon the caſe for thoſe words doth not lie.
Adjudged in London, that an action upon the caſe lies brought by Huſon, Inholder, for that the Defendant ſaid falſely, that he had buryed divers which died of the Plague, in his houſe, in his Garden, when the plague was not in his houſe, by which his gueſts refuſed to come to his houſe.
Alſo it was the opinion of the Kings Bench, that an action upon the caſe doth not lie, for calling the Plaintiff falſe knave.
Eſſex in the Kings Bench Roll. 149. Hill. Terme, 26. Eliz. Rich. Kerby Gentlemen, brought his action upon the caſe againſt John Waller, for ſaying theſe words, that is, thou Kirby art a falſe cozening knave, and hath falſely cozened my two Kinſmen, William Walker, and Thomas Walker, Brothers of the ſaid William, of Lands worth 6000 l. the manner of Py…on in Rameſhold, and I will bring thee to ſtand upon the Pillory for that. And adjudgad that the action doth not lie, and the Jury taxed damages to a 100 l. and upon that adjudged that the action did not lie.
London, Thomas Gittens Carpenter, Anno 26. brought his action upon the caſe againſt James Redforne in the Exchequer, for ſaying theſe words, Thomas Gittens is a cozening knave, and I have proved him a cozening knave before my Lord Maior of London, for ſelling a Saphir for a Diamond, and adjudged that it doth not lie.
Action upon the caſe upon a warrant …f a thing ſold, and upon knowledge without wairant.
ACtion upon the caſe lies for ſelling corrupt wine, and the writ is, knowing it to be corrupt, and warrant is not to purpoſe, for it is ordained that none ſhall ſell corrupt victual, if he know it, and ſo the Iſſue was, whether it were good and not corrupt. An action upon the caſe lies for ſelling corrupt victual, if he know it, and ſo the iſſue was, whether it were good and not corrupt, an action upon the caſe lies for ſelling ſo much Cloth and not well fulled, where he warrants it, 11. H. 6. fol. 22.
Note the uſe, where Meaſel Porks are fold at Rumford, to have reſtitution of his money if they prove Meaſel, 9 H. 6. fol. 53.
7 H. 4. fol. 16. Action upon the caſe lies for ſelling corrupt wine, knowing, &c. the Defendant ſaith, that he taſted it, and accepted it for good: the Plaintiff ſaith, he accepted it for good upon condition, if he liked it, after it came to his houſe, &c.
19 H. 6. fol. 49. If one ſell wine without warranty, if that be corrupt, action upon the caſe lies, for it is prohibited by law, 7. H. 4. fol. 76.
13 H. 4. fol. 2. If one ſell to me a Horſe apparent blind, and warrant him ſound of all his Members, and I ſee him, I ſhall have no deceit, for that I might ſee it, otherwiſe it is of a diſeaſe within his body, there upon the warrant I ſhall have deceit. But if one ſell a blind horſe, and warrant him to one that doth not ſee him, deceit lies: If one ſells to me wine, and I bid my Servant to taſte it, deceit doth not lie if it be corrupt, for that he hath taſted it.
Fitzh. 94. C. If a man ſell a horſe to another, and warrant him to be ſound and good, &c. If the horſe be lame or diſeaſed, that he cannot work, action upon the caſe lies, And ſo if one bargain and ſel to one certain Pipes of wine, and warrant them to be good, and they are corrupt, action upon the caſe lies againſt him, and by Fitzh. it behoveth that he warrant the horſe, and alſo the wine, otherwiſe action upon the caſe doth not lie, inquire of the wine.
Fitzh. 98. K. If a man ſell Clothes and warrant them to be of a certaine length, if they be not of ſuch a length, he he which buyes them ſhall have a Writ of Deceit againſt him, but if the warranty be made after the bargain, is otherwiſe.
11 Ed. 4. fol. 7. Where one ſells Clothes and warrants them to be of ſuch a length, and they are not, deceit lies, for he could not know but by meaſure, and he beleeved him, but it is ſaid, if he warrant Seeds to grow that is in Cod, or that a Horſe ſhall carry one ten miles in two houres which is to come, or warrant Cloth to be murrey where it is blue and ſee it, deceit doth not lye, but if he warrant Cloth to be of ſuch a Country when it is not, deceit lies.
11 R. 2. Statham, If one ſell a Horſe, knowing him to be lame, and warrant him to be ſound, the Defendant ſaith that he ſold him ſound, without that, that he warranted him.
31 H. 6. fol. 11. Statham, If one ſell a Horſe, knowing him to be lame and do not warrant him, action upon the caſe doth not lye.
20 H. 6. fol. 37. By Paſton, and not denied, if a man ſell a horſe which hath a diſeaſe, the Buyer may have action upon the caſe, that the Defendant knowing his Horſe to be diſeaſed; ſold him, though he do not warrant him to be ſound; notwithſtanding it ſeems otherwiſe, where the Buyer may ſee the diſeaſe, by looking upon him as a ſplint, a ſpavin, or an eye.
9 H. 7. f. 22. If one ſell a thing, and warrant that at the ſame time, he may have deceit, notwithſtanding that he hath not paid the Money, for that, that he might have debt at his pleaſure for the Money.
Action upon the caſe for coſenage and deceiving of one.
ACtion upon the caſe was brought againſt W. C. for that the Defendant took eight Oxen of J.S. and offered to ſell them to the Plaintiff as his proper Goods, and by this ſalſity the Plaintiff truſting to the honeſty of the Defendant bought them, and paid ſeven pound, and after the owner tooke the Oxen, by which the Plaintiffe loſt the Oxen by this falſity to his wrong and damages, &c. Book of Aſſ. 8.
20 H. 6 fol. 25. Deceit was brought, for that the Defendant was his Attorney, and ought to have taken an Obligation of J.S. for a hundred pound to the Plaintiff, and he took it to himſelfe; and it is ſayd, he ought to declare that he took a Fee of him: And ſo lyeth an Action upon the Caſe for ſuch Coſenage and Deceits: VVhichWhich note.
9 E. 4. fol. 12. By Littleton, Debt againſt two, as Executors, and one is no Executor, nor never adminiſtred, &c. Yet he acknowledged the Action, and the other made default, the Plaintiffe recovers, the other hath no remedy but an Action of Deceit; that is, Upon the Caſe, for he is party to the Judgement.
42 Ed. 3. f. 14. Conſpiracy in the nature of an Action upon the caſe was brought againſt three, which conſpired to make one of them Attorney for the Plaintiff, and to plead as they pleaſed, and ſo to cauſe the Plaintiff to be found a Villain to one of the Defendants, and it lies, 26. Book of Aſſiſes 62.
47 Ed. 3. f. 15. Action upon the caſe lies in nature of a Conſpiracy, for that the Defendant procured and cauſed a falſe Office to be found, by which the Mannour of the Plaintiff was ſeiſed into the Kings hands, Tit. Conſpiracy, 8. B. See 27. Book of Aſſiſes 73. Fitzh. 114. D.
43 Ed. 3. f. 20. Deceit, for that the Defendant procure J. S. to bring a Formedon againſt the Plaintiff by Colluſion, by which he was travell by the Suit, and brought a Writ of Warrantia Chartae in defence of that, and it lies.
Where an Action upon the Caſe lies for a thing pawned, and for a thing borrowed, and where not.
ACtion upon the Caſe doth not lie, for riding his Horſe which he had hired of the Plaintiff, which was weary, ſo that he had no ſervice of him by ſix Dayes, for wearineſſe is natural after labor, and for that he ought to ſhew ſome Fault in the Defendant, if he will have that Action.
Fitzh. 86. C. If one borrow certain Money, and deliver certain of his Goods in pawn for it, and he offers the Money to the party again, and prayes Delivery of his Pawn, and the other refuſe it, he ſhall have an Action upon the Caſe for the Pawn.
40 Ed. 3. f. 6. If I borrow a Horſe, and he dies ſuddenly, and not by my default, I ſhall not be charged to reſtore a dead Horſe.
Doct. & Student. f. 29. If one uſe the thing borrowed, in other manner then to what it was borrowed, he ſhall be charged, if they periſh in any manner: but if he uſe them as they were lent, if they periſh not through his default which borrowed them, the Owner ſhall bear the loſſe.
Doct. & Student. fol. 128. If a man borrow a Horſe, and puts him in a houſe which fals upon him, if it were ſtrong and not feeble to fall, he ſhall be diſcharged, otherwiſe it is, if it were weak.
21 Ed. 4. Tit. 42. Detinue of Goods, Br. Detinue of a Horſe, it is a good Plea, that at the time of the Delivery, the Horſe was ſick of divers Diſeaſes, as Botts, Glanders, and ſuch like, by which he died at D. ſuch a day and year, before requeſt made by the Plaintiff to re-deliver him, and it is a good Plea, contrary if he do not ſay, it was before requeſt, for if it were after requeſt, that had been the folly of the Defendant.
Where Action upon the Caſe lies, or Detinue, and where Treſpaſs, and where not.
IF the Leſſor will not diſcharge his Farmer of a Tenth, or of a Fifteenth, or of Quit-rent, which are due by the Leſſor, and the Farmer pay it, yet he cannot keep that back in the payment of his Rent, but ſhall have an Action upon the Caſe, 21 H. 7. f. 12.
7 H. 4. fol. 3. If the Teſtator hath my Goods amongſt his Goods, and dies, Treſpaſſe by force and Arms doth not lie againſt his Executors for theſe Goods, but Detinue in an Action upon the Caſe: and if one finde my Goods, Treſpaſſe doth not lie againſt him, but Detinue, or an Action upon the Caſe.
12 Ed. 4. f. 10. If one take my Beaſts, and another take them from him, I ſhall not have Treſpaſſe againſt the ſecond, but Action upon the Caſe, 21 Ed. 4. fol. 89. the ſame.
13 Ed. 4. fol. 9. If Goods be delivered to one, he cannot be a Treſpaſſor of them, but a Detinue lies of them.
18 Ed. 4. f. 28. VVhere one hath Goods by my Delivery, I ſhall not have Treſpaſſe, but Action upon the Caſe, and Count of miſ-uſing of them.
46 Ed. 3. fol. 15 Treſpaſſe, if the Defendant ſaith, that the Goods were thrown into the Sea by a Tempeſt, for ſafeguard of the Ship, and he took them, and Treſpaſſe doth not lie againſt him, for that they were not taken out of the poſſeſſion of the Plaintiff.
21 H. 7. f. 39. By Fineux and Tremail, if I deliver Goods to a man, and he gives them, or ſels them to a ſtranger, if the ſtranger takes them without Delivery, I ſhall have a VVrit of Treſpaſſe; but if he makes Delivery to the ſtranger of them, I ſhall have no Treſpaſſe.
Littleton, fol. 14. If I deliver to one my Sheep to dung his Land, or my Oxen to plow his Land, and he kils my Beaſts, I ſhall have Treſpaſſe, that is to be intended Treſpaſſe upon the Caſe, and not Treſpaſſe by force of Armes. See 2 Ed. 4. f. 5. in Parco fracto.
18 Ed. 4. fol. 23. In Action upon the Caſe, where he counts of miſ-uſing of a thing delivered to the Defendant, or converting it to his own uſe, is to recover Damages for the thing, and where one will recover the thing it ſelf, he ſhall have Detinue.
7 Ed. 4. f. 4. Where one comes to Goods lawfully, as by Delivery, Treſpaſſe doth not lie againſt him, but Detinue.
12 E. 4. f. 8. A man ſhall not have treſpaſſe general, that is, by force of Armes, againſt him that miſ-uſes a Licenſe in Deed, as to ride a Horſe twenty Miles, where he borrowed the Horſe but for ten Mile; but he ſhall have an Action upon the caſe; contrary, if one miſ-uſe a Licenſe in Law, as to enter into a Tavern, there he ſhall have Treſpaſſe, by force of Armes, 21 Ed. 4. f. 76. the ſame.
18 Ed. 4. f. 2. If my Bailiff kill my Kine, Treſpaſſe by force of Armes doth not lie, but an Action upon the Caſe.
21 Ed. 4. fol. 22. Action upon the Caſe lies againſt J. S. Officer of the Kings Bench, for that that the Plaintiff affirmed a Plaint of Debt againſt J. D. in London, the ſaid J. S. purchaſed a Superſedeas of Priviledge for J. D. ſuppoſing that he was his Servant.
2 H. 4. f. 19. Action upon the Caſe by the Neighbour of a fire, lies, that according to the Law and cuſtome of the Realm of England, &c. that every one ſhall keep his fire, leaſt by his fire any loſſe ſhould come to his Neighbours.
42 Ed. 3. fol. 11. Action upon the caſe lies, where throughout the whole Realm of England it was a cuſtome, that the Hoſt ſhould keep the Goods that their Gueſts brought into their Houſe, if it be a common Inn, and ſhould be charged, though they were not delivered, and though that the key of his Chamber were delivered to the Gueſt, 22 H. 6. f. 24. 2 H. 4. f. 8. 14 H. 4. f. 43. Fitzh. f. 94. B. 11 H. 4. f. 43.
28 H. 6. f. 7. Action upon the caſe lies, for that, that the Dog of the Defendant worried the Sheep of the Plaintiff, he knowing his Dog to be accuſtomed to worry Sheep, and it is no Plea for the Defendant that he did not know, By Moyl, but he ought to anſwer, that he did not worry the Sheep.
41 Ed. 3. fol. 24. If a man ought to grinde his Corne at the Mill of the Defendant without paying Tole, and the Miller take Tole, treſpaſſe by force of Armes lyes, and ſo it is ſaid where he takes more Tole then he ought, but if one hinder people to come to my Market, Action upon the caſe lies.
13 H. 4. f. 12. Action upon the caſe lies, for that, that he hath a Leet in the Mannor, Eyer and Court, from three weeks, &c. There hath the Defendant held Court within the ſame Mannor, and hath diſtrained his Tenants by great and often diſtreſſe, and hath impoveriſht them, that they cannot pay their Rent, Fitzh. 94. E. the ſame.
33 H. 6. f. 16. Action upon the caſe lies, where his Steward comes to hold a Leet, and the Defendant diſturbs him.
11 H. 4. fol. 45. Schoole-Maſter ſhall not have an action of the caſe againſt another, for ſetting up another School, that he cannot have ſo many Schollars as he had before, for the profeſſion is free, and is for the Common-wealth: the ſame law of erecting a Mill upon his own land, though the Plaintiffs Tole be diminiſhed, he ſhall not have an action upon the caſe, 22 H. 6. f. 14. Mill levied.
48 Ed 3. f. 25. Action upon the caſe lies againſt Tenant at will which makes waſt, or burning a Houſe willingly, and not an action of waſte, Lit. 14. 21 H. 6. fol. 43.
7 H. 4. f. 8. Action upon the caſe lies, for that, that the Defendant ought to repaire a certaine wall upon the Thames, and doth it not, by which the land of the Plaintiff is drowned, Fitzh. 93. E. the ſame.
7. H. 4. fol. 16. Account doth not lye againſt a Bailiff, or Servant for driving his Plow, in which default the Beaſts periſhed, but an action upon the caſe lyes for his negligence, for default of good keeping.
2 H. 7. f. 11. Action upon the caſe lies for negligent keeping my Sheep, and the ſame Law for negligent carrying my Pots, or glaſſe; and where one keeps my Horſe, and ſtarves him for Meat.
7 H. 4. f. 45. Action upon the caſe lies by the Lord of B. againſt him which bought and ſold in the Market of B. without paying Tole, and though the VVrit was (Tollenam aſportavit) yet it was alſo, and he denied to pay it, and for that it was awarded good, for the firſt words are void and the laſt ſufficient.
11 H. 4. f. 25. If a way belonging, &c. be ſtopped, Aſſiſe of Nuſance lies, but for ſtopping of a way ingroſſe he ſhall not have an Aſſiſe of Nuſance, but action upon the caſe.
14 H. 8. f. the laſt, VVhere part of a River, or way is ſtopt which is narrow, action upon the caſe lies, and where the whole, an Aſſiſe of Nuſance, an action upon the caſe lies where he hath no other remedy.
11. Ed. 4. f. 23. It ſeems there that a good Pleader, may frame actions upon the caſe for many matters which are in the Chancery.
26 Book of Aſſ. 79. Action of the caſe lies againſt the Sheriff which quaſhed an Eſſoyne erroniouſly, for falſe Judgment doth not lye unleſſe it were Judgement of the Suitors.
Fitzh. 114. D. If one Perſon of his malice, and by his falſe imagination, labour and cauſe another to be iudicted falſly, the party which is ſo indicted ſhall not have a Writ of conſpiracy, but an action upon the caſe againſt him which cauſed him to be ſo indicted.
Fitzh. 95. D. If one play with others at Dice, and hee hath falſe Dice, and wins Money of others with falſe Dice, Action upon the Caſe lyes for this deceit.
13 H. 7. fol. 26. Action upon the Caſe lyes, where one hath a Water-courſe by Preſcription, to Brew, and water Beaſts, there hath the Defendant made Lime-pits, &c. 4 Book of Aſs. 3. See Nuſance for Lever Tozaile to the annoyance of the Free-hold.
Action upon the Caſe for miſ-uſing an Officer in his Office.
ACtion upon the Caſe lyes againſt a Sheriffe, where the Plaintiffe hath Charter of exception, that he ſhall be impannelled upon no Jury, and ſhews that to the Sheriff, and yet he impannels him, 18 H. 8. fol. 5.
21 H. 7. fol. 22. by King, Where the Sheriffe ſerves a (Fieri facias) and levies the ſum, and doth not returne the Writ, the party may have treſpaſſe againſt him for levying that; the ſame Law, if by a (Capias) the Sheriffe arreſt one, and doth not returne the Writ, falſe Impriſonment lyes, 20 H. 7. fol. 13. 21 H. 6. tit. 6. B.
6 H. 6. Tit. 9. Treſpaſſe upon the Caſe was brought againſt an Eſcheator, becauſe he found an Office, that the party held of J. S. and he returned an Office, That the party held the moity of the King in Cheife, and by the Court it lyes, for he and the Sheriff are Officers of Record, but not Juſtices of Record; for there it was agreed that an Action doth not lye againſt a Juſtice of Record, 9 H. 6. fol. 60. the ſame, 12 H. 6. fol. 3.
47 Ed. 3. fol. 15. Conſpiracy, in the nature of an Action upon the Caſe, was brought for that, that the Defendant procured, and cauſed a falſe Office to be found, by which the Mannor was ſeiſed into the Kings hands, and he ſued that out to the Loſſe.
21 Ed. 4. fol. 43. If the Sheriffe upon a Writ of ſecond deliverance, makes deliverance to the Plaintif of the diſtreſſe, and will not returne the Writ, ſo that the Defendant may conſtraine the Plaintif to come and count, ſo that he may avow; the Defendant ſhall have remedy againſt the Sherif, and this ſeems, by an Action upon the Caſe.
8 H. 6. fol. 1. Where in Precipe, the Sherif returnes a Summons, where he was not ſummoned, by which hee looſes his Land, Action upon the Caſe lyes againſt the Sherif: See that deceit lyes.
19 H. 6. fol. 29. Action upon the Caſe lyes againſt the Sherifs Deputy, for imbezzeling a Writ of (Habeas corpora) and it lyes as well againſt him that ſtirrs up another to doe it, as againſt a doer.
16 H. 6. tit. 38. by Paſton, If the Sherif returne a man ſufficient, upon a Venire facias, by which the next Sherif i… charged of the Iſſues, he ſhall have an Action upon the Caſe againſt the Predeceſſor, for he cannot returne nihil againſt the returne of his Predeceſſor.
1 H. 6. fol. 1. Precipe, Where the Tenant looſeth his Land, by default upon a falſe returne of the Sherif, as he returnes the Tenant ſummoned, where he was not, deceit lyes, but if the Summoners were dead, Action upon the Caſe lyes.
38 Book of Aſs. 13. Action upon the Caſe lyes againſt the Sherif, where he made a Precept to one, which was no Bailif of the Franchiſe, which returnes a Jury, by which this was quaſht to the damages, &c.
41 Book of Aſs. 12. Deceit in the nature of an Action upon the Caſe, lyes againſt the Sherif, for that, that one was outlawed at his Suit, and that the Defendant then Sheriff, would not return the VVrit to the loſſe, &c.
30 Book of Aſſ. 5. VVhere the Bailiff of a Franchiſe returnes a Pannell to the Sheriff, and returnes another Pannell of himſelf, this ſhall not be outed at the requeſt of the Bailif, but they ſhall have their action of the caſe againſt the Sherif.
11 H. 6. f. 18. If a Lawyer be retained to looke over evidence, and after he diſcovers that to another perſon, by which, &c. Action upon the caſe lies againſt him; contrary if he ſhew him his evidence, and do not retaine him.
15 H. 7. f. 14. By Fro: VVhere an Attorney appeares for a man without authority, and Imparles, where he might have pleaded miſnaming, and by this hath loſt the advantage of this Plea; Action upon the Caſe lyes againſt him, for that, that he appears without authority.
9 Ed. 4. tit. 118. B. Where a Guardian pleads falſly for an Infant, or vouches one which is not ſufficient to render in value to the Infant, the Infant ſhall have a… Action of Deceit.
Action upon the Caſe againſt Executors.
ACtion upon the Caſe was brought againſt the Executors of J. D. and Count that J. S. bought things of the Plaintif, and J. D. undertook, if he payd not at the day, he would, and counts that he had Aſſets ſufficient to pay all his Debts and Legacies, and ſufficient to content him, and it lyes: Note, J. D. did not make the bargaine and contract, but undertook for J. S. and upon Aſſumpſit he could not wage his Law, 12 H. 8. fol. 12.
27 H. 8. f. 29. Where Tatam was in execution, the Defendant ſaith, if he would diſcharge him out of execution, that ſuch a Day he would pay him, if Tatam could not: the ſame Law, if he ſaith to a Baker, Deliver Tatam ſo much Bread, and if he do not pay you ſuch a Day, I will pay you; Debt doth not lie againſt me upon this Promiſe, but an Action upon the Caſe.
27 H. 8. f. 27. It ſeems if a man be indebted upon a ſimple Contract, leaves Aſſets, and dies, the Action upon the Caſe doth not lie againſt the Executors, for the Teſtator might have waged his Law, but he ſhall have a Quo minus in the Exchequer.
15 Ed. 4. f. 15. Where the Teſtator may wage his Law, as in Debt of Contract made by him, and borrowed, Debt doth not lie againſt his Executor.
Plowd. Com. f. 181. Action upon the Caſe was brought by Richard Norwood, againſt the Executor of Tho: Gray, and counts that the Teſtator in conſideration of forty ſhillings to him paid, undertook to deliver to the Plaintiff certain Corn at a Certain Day, and did not; and counts that the Goods and Chattels of the ſaid Tho: Gray the Teſtator, at the time of his Death were ſufficient to ſatisfie, as well all the Debts which the ſaid Tho: Gray did owe to any perſon, or to any perſons, at the time of his Death, as to ſatisfie the Plaintiff for the ſaid forty ſhillings; and adjudge that this Action lies againſt the Executors. And if an Action upon the Caſe be brought againſt Executors upon a ſimple Contract, if the have no Aſſets but to pay Specialties, they may plead that, and ſhall not be charged.
4 Ed. 3. chap. 7. is, That an Executor ſhall have Treſpaſſe of Goods carryed away in the life of the Teſtator, or before: an Action perſonal dies with the perſon.
7 H. 4. fol. 8. Executors ſhall have Eiectione firme by the equity of the Statute.
23 H. 8. Tit. 138. Waſte, if a Termor make waſte, and makes Executors, and dies, the Action of waſte is gone, for it doth not lie againſt Executors, but for waſte made by them.
Action upon the Caſe, for not performing his Promiſe, and Aſſumpſit, and the place, and how, where it ſhall be traverſed.
WHere a man makes a promiſe, or an Aſſumption to doe a thing, and doth it not, and there is no ſpecialty of that promiſe, he ſhall have an Action upon the Caſe, and not a Covenant, for that it was not by ſpecialty; as for a hundred pound paid, the Defendant bargained, and ſold his Land to the Plaintiff, and promiſed to infeoff him, and infeoffs another perſon, he ſhall have Deceit, or Action upon the Caſe, 20 H. 6. f. 36.
3 H. 7. f. 14. Action upon the Caſe, and counts that the Defendant for 10. l. took upon him to labor for the Plaintiff to J.S. that J. S. ſhould let the Mannor of D. to him, and counts that the Defendant hath taken that to himſelf, the Action lies: ſo if he undertake for 10. l. paid, to infeoff him, and infeoffs another, for this miſ-doing, an Action of the caſe lieth, 2 H. 7. f. 12. the ſame.
48 Ed. 3. f. 6. Action of the Caſe lies againſt him which took upon him to cure the Plaintiff of a Wound, and did not, and by his negligence the Plaintiff was worſe.
3 H. 6. f. 37. Action upon the Caſe, and counts that the Defendant took upon him to make a Mill before ſuch a Day, and did not, but held that he ought to have counted what he ſhould have, for it ſhall be Quid pro quo, and otherwiſe the Action doth not lie.
2 H. 4. f. 4. Action upon the Caſe, and counts that the Defendant took upon him to make him a Houſe, and it ſeems it doth not lie, I conceive that was, for that he doth not count what he ſhould have for doing it, 11 H. 4. fol. 31.
14 H. 6. fol. 19. Action upon the Caſe, where one had bargained to him certain Land for a certain ſumm, and undertook that a ſtranger releaſed unto him. Where a Carpenter covenants to make to me a Houſe, or a Chyrurgeon takes upon him to cure me of my Hurts, and they do not, for this not doing, it ſeems, an Action upon the Caſe lies.
21 H. 6. f. 63. If one for ten Markes bargaine with the Plaintif for two Pipes of Wine, and undertake to deliver them at D. and did not, an Action upon the caſe lies, though that ſounds in Covenant, for that there is no ſpecialty, and the ſame Law is of all other bargaines; and by Paſton, bargained, ſold, or bought: It is no diverſity to one or the other.
19 H. 6. f. 49. Action upon the caſe that the Defendant aſſumed upon him to cure his Horſe of a certain Diſeaſe, and that be negligently, and careleſly applied Medicines, that the Horſe dyed, and it lies.
26 H. 8. Tit. 133. Action upon the Caſe, that the Plaintiff delivered Goods to the Defendant, and the Defendant for ten ſhillings undertook to keep them ſafe, and did not, to the loſſe, &c. The Defendant ſaith, that he had them not by the Delivery of the Plaintiff, good by Fitzh. and Shelley.
34 H. 8. Tit. 107. Action upon the Caſe in London, and counts that he was Poſſeſſor of Wine and Stuff, and ſhowed that certain in ſuch a Ship. The Defendant at London aſſumed for ten pounds, that if the Ship and Goods did not come ſafe to London, and are there landed, that then he would ſatisfie a hundred pounds to the Plaintiff; and that afterwards the Ship was robbed upon Trade, on the Sea; and for not ſatisfaction, he brought his Action; the Plaintiff doth not ſhew where he was poſſeſſed, and yet good, and the truth was, that the Bargain was beyond Sea, and not in London. But where the place is not local, it is not material, and though he were robbed upon the main Sea, the Action lies in London upon the Aſſumpſit. See after fol. 1.
19 H. 6. f. 49. Action upon the Caſe, that the Defendant at London took upon him to cure his Horſe, and that careleſly he gave him a Medicine that the Horſe died: the Defendant ſaith, that at Oxford in the County of Oxford, he took to cure his Horſe, which ſaith, without that, that he undertook at London, and held a good Plea.
3 H. 4. f. 4. Deceit in Land of that, that the Defendant there did undertake, that the Lord ſhould cauſe him, to have certain Copy-hold of the Mannour of D. in the County of Middleſex, and he aſſured that to others, and ſaith, that he might be ſued where the Aſſumpſit was, or where the Land is. Inquire.
11 H. 4. fol. 4. Treſpaſſe by Executors in Middleſex, of Money taken in the life of the Teſtator: the Defendant ſaith, that the Teſtator was indebted unto him, and delivered that to him in London, in the name of Payment, &c. and it is no Anſwer to the Treſpaſſe in Middleſex, but he ſhould ſay, without that, that you took it in Middleſex, as the Plaintiff ſuppoſe, and is good, 7 H. 6. f. 37. & 22 Ed. 4. f. 38. the ſame.
4 H. 6. fol. 12. Treſpaſſe of a Cloſe broken in D. Defendant juſtifies in S. for Common appendant, and ought to traverſe, without that, that he is culpable in D. 22 H. 6. fol. 40.
9 H. 6. f. 62. Treſpaſſe of digging a Turbary in D. in the County of Middleſex, he cannot juſtifie in the County of Eſſex, without that; that he is guilty in the County of Middleſex, for he may plead not guilty, if it be in another County, but in Treſpaſſe local in D. the Defendant may juſtifie in S. in the ſame County, without that, that he is guilty in D. but in Treſpaſſe tranſitory in D. Defendant cannot juſtifie in S. in the ſame County, without that, that he is culpable in D. yet in Treſpaſſe of Battery, or Treſpaſſe of Goods taken in D. in the County of Middleſex, and Defendant juſtifies in S. in the County of Eſſex, without that, that he is culpable in D. in the County of Middleſex, 5 H. 4. f. 2. 10 H. 7. f. 27. 11 H. 6. f. 20.
5 H. 4. f. 3. Treſpaſſe of Sheep taken at D. in the County of Hartford: the Defendant juſtifies the taking in Smithfield in London, doing Damage, he ought to ſay, without that, that he took them at D. in the County of Hartford.
6 R. 2. chap. 2. That Writs of Debt and Account, and all ſuch whatſoever hereafter ſhall be taken in their Counties: and it is ordained, that if hereafter it be declared, the Contract thereof to be made in another County, that then incontinently that Writ ſhall be quaſht.
9 Ed. 4. fol. 48. By Needham, a man cannot plead in Abatement of a Writ, and ſay, the Contract was made in another County, for the Statute is not intended, but where it appears by the Writ, that the Contract was made in another County; but before this time they have uſed to make Examination where the Contract was made, and upon that abate the Writ, if it were in another County, but this not uſed now. See 3 H. 6. Tit. 30. Examination, & fol. 36.
18 Ed. 4. fol. 1. Nuſance, that a Mill was erected in D. in the County of Kent: the Defendant ſaith, that he and all his Anceſtors have been ſeiſed of a Mill in the County of Eſſex, and the Mill fell by? Tempeſt, and he built it, without that, that he is guilty of any Annoyance in D. in the County of Kent, and doth not traverſe all the County, and yet good by the whole Court, for that, that the thing is local, and annexed to Free-hold; and contrary of beating, or Goods carried away, which may be continued, and is tranſitory, 21 H. 6. f. 11.
2 M. Tit. 283. Traverſe by, without that, of Treſpaſſe of Battery, or Goods carried out, it is tranſitory, and is not local, as of Trees cut, and Graſſe mowed; and therefore in Treſpaſſe tranſitory, the place ſhall not make Iſſue, and is not traverſable, no more then in Treſpaſſe upon the Caſe upon an Aſſumption, and theſe may be continued; contrary of Treſpaſſe local. See after Title Vill.
34 M. Tit. 268. Traverſe by, (without that) Action for making falſe Cloth in Bartholomew Fair, London, againſt the Statute: Defendant ſaith, that he made them well and truly in D. in the County of E. without that, that he made them in Bartholomew Fair, London, as, &c. and it is good, 22 Ed. 4. f. 38. the ſame verbatim.