it was executed and determined long before. But in that case it was holden by all the justices that if Hunt had requested Baker to have been surety or bail, and afterwards Hunt had made the promise for the same consideration, the same had been good, for that the consideration did precede, and was at the instance and request of the defendant. RHODES, J., agreed with PERIAM; and he said that if one serve me for a year, and hath nothing for his service, and afterwards, at the end of the year, I promise him 207. for his good and faithful service ended, he may have and maintain an action upon the case upon the same promise, for it is made upon a good consideration; but if a servant hath wages given him, and his master ex abundanti doth promise him 107. more after his service ended, he shall not maintain an action for that 107. upon the said promise; for there is not any new cause or consideration preceding the promise; which difference was agreed by all the justices; and afterwards, upon good and long advice, and consideration had of the principal case, judgment was given for the plaintiff; and they much relied upon the case of Hunt and Baker, 10 Eliz., Dyer, 272.

CRIPPS v. GOLDING.

IN THE QUEEN'S BENCH, MICHAELMAS TERM, 1586.

[Reported in 1 Rolle's Abridgment, 30.]

IF a man, in consideration of a surrender and of 10l. paid, promises to do such a thing, although the surrender cannot be made, so that that consideration is void, yet the action is maintainable upon the other consideration.1

SIR ANTHONY STURLYN v. ALBANY.

IN THE QUEEN'S BENCH, MICHAELMAS TERM, 1587.

[Reported in Croke Elizabeth, 67.]

ASSUMPSIT. The case was, the plaintiff had made a lease to J. S. of land for life, rendering rent. J. S. grants all his estate to the defend

1 In 1 Leon, 296, s. c. nom. Crisp and Golding's Case, it was said by Coke, arguendo: "Where two or many considerations are put in a declaration, although some be void, yet if one be good, the action well lieth, and damages shall be taxed accordingly." Bradburne v. Bradburne, Cro. El. 149; Colston v. Carre, 1 Rolle's Ab. 30, Cro. El. 847 ; Crisp v. Gamel, Cro. Jac. 128; Best v. Jolly, 1 Sid. 38, acc.

ant; the rent was behind for divers years; the plaintiff demands the rent of the defendant, who assumed that if the plaintiff could show to him a deed that the rent was due, that he would pay to him the rent and the arrearages; the plaintiff allegeth that upon such a day of, &c., at Warwick, he showed unto him the indenture of lease by which the rent was due, and notwithstanding he had not paid him the rent and the arrearages due for four years. Upon non assumpsit pleaded, it was found for the plaintiff, and damages assessed to so much as the rent and arrearages did amount unto. And it was moved in arrest of judgment, that there was no consideration to ground an action; for it is but the showing of the deed, which is no consideration. 2. The damages ought only to be assessed for the time the rent was behind, and not for the rent and the arrearages; for he hath other remedy for the rent; and a recovery in this action shall be no bar in another action. But it was adjudged for the plaintiff: for when a thing is to be done by the plaintiff, be it never so small, this is a sufficient consideration to ground an action; and here the showing of the deed is a cause to avoid suit; and the rent and arrearages may be assessed all in damages. But they took order that the plaintiff should release to the defendant all the arrearages of rent before execution should be awarded.

Nota. In this case it was alleged that it hath been adjudged, when one assumeth to another, that if he can show him an obligation in which he was bound to him, that he would pay him, and he did show the obligation, &c., that no action lieth upon this assumpsit; which was affirmed by the justices.

STRANGBOROUGH AND WARNER.

IN THE QUEEN'S BENCH, 1588 OR 1589.

[Reported in 4 Leonard, 3.]

NOTE, That a promise against a promise will maintain an action upon the case, as in consideration that you do give to me 107. on such a day, I promise to give you 107. such a day after.1

1 See also Pecke v. Redman, Dyer, 113 (1555).

JEREMY v. GOOCHMAN.

IN THE COMMON PLEAS, MICHAELMAS TERM, 1595.

[Reported in Croke Elizabeth, 442.]

ASSUMPSIT. And declares that, in consideration quod deliberasset d dedisset to the defendant twenty sheep, he assumed to pay unto him five pounds at the time of his marriage; and allegeth in facto that he was married, &c. The issue was non assumpsit, and found for the plaintiff; and now moved in arrest of judgment, because it is for a consideration past; for it is in the preter tense deliberasset, and therefore no cause of action. And of that opinion was the whole court; wherefore judgment was stayed.'

RICHES AND BRIGGS.

IN THE QUEEN'S BENCH, EASTER TERM, 1601.

[Reported in Yelverton, 4.]

In an action on the case the plaintiff declared that, in consideration he had delivered to the defendant twenty quarters of wheat, the defendant promised upon request to deliver the same wheat again to the plaintiff. And adjudged a good consideration; for by POPHAM and tot. cur the very possession of the wheat might be a credit and good countenance to the defendant to be esteemed a rich farmer in the country, as in case of the delivery of 1,000l. in money to deliver again upon request; for by having so much money in his possession he may happen to be preferred in marriage. Quare, for it seems an hard judgment; for the defendant has not any manner of profit to receive, but only a bare possession. Nota, the truth of the case was (which doth not alter the reason supra) that the plaintiff had delivered to the defendant the said twenty quarters of wheat to deliver over to J. S. to whom the plaintiff was indebted in so many quarters, and the defendant promised to deliver the same quarters of wheat to J. S. And because they were not delivered, the plaintiff brought his action ut supra; and adjudged ut supra. But nota, the judgment was reversed in the Exchequer, Mich. 44 & 45 Eliz., as Hitcham told Yelverton.2

1 Barker v. Halifax, Cro. Eliz., 741; Docket v. Voyel, Cro. Eliz., 411, acc.

2 Howlet v. Osborne, Cro. El., 380; Game v. Harvie, Yelv. 50; Pickas v. Guile, Yelv. 128, acc.; Wheatley v. Low, Cro. Jac. 668, contra. See 2 Harv. L. Rev. 5.

MAYLARD v. KESTER.

IN THE KING'S BENCH, TRINITY TERM, 1601.

[Reported in Moore, 711.]

MAYLARD brings action on the case against Kester on assumpsit, in consideration that he would sell and deliver to Kester woollen cloth for the funeral of a clerk, Kester assumed to pay him cum inde requisitus. And alleges that he sold and delivered divers cloth to him at various prices, viz., thirty-one black striped garments for 197., and so he recites other lots in the same manner, and the sum amounted to 1607., which he requested Kester to pay, and he did not pay according to the promise and assumption aforesaid. The defendant pleaded non assumpsit, and verdict was for the plaintiff, and judgment given. And on writ of error brought, the judgment was reversed in the Exchequer Chamber, Michaelmas Term, 41 & 42 Elizabeth, because debt properly lies, and not action on the case, the matter proving a perfect sale and contract.

SLADE'S CASE.

IN THE KING'S BENCH, TRINITY TERM, 1602.

[Reported in 4 Coke, 92 b.1]

JOHN SLADE brought an action on the case in the King's Bench against Humphrey Morley (which plea began Hil. 38 Eliz. Rot. 305), and declared, that whereas the plaintiff, 10th of November, 36 Eliz. was possessed of a close of land in Halberton, in the county of Devon, called Rack Park, containing by estimation eight acres for the term of divers years then and yet to come, and being so possessed, the plaintiff the said 10th day of November, the said close had sowed with wheat and rye, which wheat and rye, 8 Maii, 37 Eliz. were grown into blades, the defendant, in consideration that the plaintiff, at the special instance and request of the said Humphrey, had bargained and sold to him the said blades of wheat and rye growing upon the said close (the tithes due to the rector, &c. excepted), assumed and promised the plaintiff to pay him 167. at the feast of St. John the Baptist then to come: and for non-payment thereof at the said feast of St. John Baptist, the plaintiff brought the said action: the defendant pleaded non assumpsit modo et forma; and on the trial of this issue the jurors gave a special verdict, sc., that the

1 Some authorities and illustrations are omitted.

defendant bought of the plaintiff the wheat and rye in blades growing upon the said close as is aforesaid, prout in the said declaration is alleged, and further found, that between the plaintiff and the defendant there was no other promise or assumption but only the said bargain; and against the maintenance of this action divers objecsions were made by John Dodderidge of counsel with the defendant.

1. That the plaintiff upon this bargain might have ordinary remedy by action of debt, which is an action formed in the Register, and therefore he should not have an action on the case, which is an extraordinary action, and not limited within any certain form in the Register; for ubi cessat remedium ordinarium, ibi decurritur ad extraordinarium, et nunquam decurritur ad extraordinarium ubi valet ordinarium, as appears by all our books; et nullus debet agere actionem de dolo, ubi alia actio subest. The second objection was, that the maintenance of this action takes away the defendant's benefit of wager of law, and so bereaves him of the benefit which the law gives him, which is his birthright. For peradventure the defendant has paid or satisfied the plaintiff in private betwixt them, of which payment or satisfaction he has no witness, and therefore it would be mischievous if he should not wage his law in such case. And that was the reason (as it was said) that debts by simple contract shall not be forfeited to the King by outlawry or attainder, because then by the King's prerogative the subject would be ousted of his wager of law, which is his birthright, as it is held in 40 E. 3. 5 a. 50 Ass. 1. 16 E. 4. 4 b. and 9 Eliz. Dyer 262. and if the King shall lose the forfeiture and the debt in such case, and the debtor by judgment of the law shall be rather discharged of his debt, before he shall be deprived of the benefit which the law gives him for his discharge, although in truth the debt was due and payable; a fortiori in the case at bar, the defendant shall not be charged in an action in which he shall be ousted of his law, when he may charge him in an action, in which he may have the benefit of it: and as to these objections, the Courts of King's Bench and Common Pleas were divided; for the Justices of the King's Bench held, that the action (notwithstanding such objections) was maintainable, and the Court of Common Pleas held the contrary. And for the honor of the law, and for the quiet of the subject in the appeasing of such diversity of opinions (quia nil in lege intolerabilius est eandem rem diverso jure censeri) the case was openly argued before all the Justices of England, and Barons of the Exchequer, sc. Sir John Popham, Knt. C. J. of England, Sir Edm. Anderson, Knt. C. J. of the Common Pleas, Sir W. Periam, Chief Baron of the Exchequer, Clark, Gawdy, Walmesley, Fenner, Kingsmill, Savil, Warburton, and Yelverton, in the Exchequer Chamber, by the Queen's Attorney-General for the plaintiff, and by John Dodderidge for the defendant, and at another time the case was argued at Serjeants' Inn, before all the said Justices and Barons, by the Attorney-General for the plaintiff, and by Francis Bacon for the