Where the plaintiff declared, that he and one J. S. Delivery of were bargaining for a horse, and the defendant under- horse, at such a price. took that if they agreed on the price, he would pay the money; it was assigned for error that there was not any consideration stated, for it was not that he should sell or deliver, so that there was no loss to the plaintiff, nor benefit to the defendant. But the judgment was affirmed; for it shall be intended, after verdict, that the horse was delivered upon the agreement, and that the promise was the inducement thereto. In a late case, where the plaintiff declared, in consideration he had sold the defendant a certain horse of the plaintiff, for goods to be delivered in exchange, Lord Eldon, then Chief Justice of the Common Pleas, appears to have thought that the declaration was bad, even after verdict, for not stating the value or price of the horse; but as the other Judges were of a different opinion, the plaintiff had judgment, though it seems to have been admitted that such a declaration would have been bad upon special demurrer.

tinue with

In an action of assumpsit the plaintiff declared that Suffering he pretended title to certain goods, in the custody of goods to con one J. S. and claimed them to be his own, intending J. S. to remove them; and the defendant, in consideration that he would suffer them to continue there, promised to see them forthcoming, &c. after verdict it was objected in arrest of judgment, that there was no consideration alledged, as it did not appear that the property in the goods was in the plaintiff; but it was holden that the declaration was good enough, for it

must

Foster v. Holyman, 1 Lev. 103. Ward v. Harris, 2 B. & P. 265.

Delivery of bills, without saying for

what, or to whom given.

Tenancy of

must be intended he proved they were his own, or the jury would not have found for him",

Where the plaintiff declared that in consideration he had delivered to the defendant two bills of debt for 300 French crowns amounting to £80, to be received at Roan, in Normandy, to his use, he promised, &c. it was assigned for error that there was no consideration stated, for it did not appear how he should recover on the bills if payment was denied, nor that they were payable to the plaintiff, or what benefit he might have from them. The same objections had been made on a motion in arrest of judgment in the Common Pleas, without effect; and the court of King's Bench at first held that it was a good consideration, and well alledged. But the case was adjourned; and when it was moved again, and it was objected that it was not alledged for what the money contained in the bills was due, nor to whom, and it might be that they were payable and due to the plaintiff, the court held the consideration not well alledged, for those causes; and the judgment was reversed*.

Where the first count of the declaration alledged that farm, without on such a day the defendant became and was tenant to saying on what terms. the plaintiff of a certain farm, in consideration whereof

he promised not to carry away therefrom any of the straw, dung, or compost, &c. and it was stated in the second count, that for the same consideration, the defendant promised to cultivate the land in a good and husbandlike manner, according to the custom of the country;

"Evans's case, 1 Vent. 211. " Person v. Hickled, Cro. Eliz. 155. * Id. 170. S. C.

country; and the third, to manage and cultivate it according to the usage and course of good husbandry; after verdict for the plaintiff it was moved in arrest of judgment, on the ground that there was no consideration alledged for the promises laid in the declaration, inasmuch as it was not stated that the defendant had become tenant on the terms that he would perform the promises declared on (1). But the court said that the

bare

ATHAWES v. Аsн, M. 31 Geo. 3.

clares that de

on the terms of

husbandlikeman

(1) The declaration contained four counts.-The 1st stated that the If plaintiff dedefendant was possessed of a farm, on the terms of using it in a hus- fendant was posbandlike manner, and of leaving the buildings and fences in sessed of a farm, tenantable repair, according to the custom of the country where using it in an the premises were situate.-The 2d count was the same, only omit- ner, and leaving it in repair, he ting the custom of the country. These two counts then stated a va- must prove an riety of breaches, by over-cropping, pulling down fences, ploughing up meadow, and pasture, &c. The 3d count was for wrongfully ploughing up a quantity of land which had been meadow for years, and another quantity which had been pasture for the time. The 4th count was for waste in the buildings.

seven

same

At the trial before Mr. J. Ashhurst, at Buckingham, he was of opinion that, by the common law, without express agreement, the tenant. was bound to use the farm in a husbandlike manner, but that a tenant from year to year was not bound to leave in repair, without an agreement to that purpose; and that the plaintiff not being able to prove such an agreement, failed on his first, second, and fourth counts. On the part of the defendant, however, evidence was given, that the lessor from whom the plaintiff had but recently purchased part of the premises, had, in a variety of instances, allowed the defendant for repairs. On the third count, it appeared that the defendant had ploughed some land which had been meadow and pasture 15 years, but that before that time it had been arable, and the defendant himself had laid it down. The learned Judge was of opinion that he had a right to plough it; and thereupon the plaintiff was nonsuited.

Partridge

Counts on tort,

express contract.

without custom or contract al

ledged, cannot be joined with those on contract.

Occupation, and payment of rent.

Permission to enjoy land.

relation of landlord and tenant was a sufficient consideration for the promises in the declaration". This case is a very important one, as it frequently occurs in practice.

Occupation, and payment of rent, may be stated as a consideration for a promise to save harmless on account of the occupation; for the possession continues, and the payment of rent recurs every year; and if the lessee be secured in his occupation, he will pay his rent the better".

Where the plaintiff declared, in consideration that he would permit the defendant to enjoy certain land for a year, the defendant promised to pay him so much, it. was moved in arrest of judgment, after verdict, that it was not shewn what right or title the plaintiff had to

the

y Powley v. Walker, 5 D. & E. 373. z Pearle v. Edwards, 1 Leon, 102. Cro. Eliz. 94. S. C.

Partridge moved to set aside the nonsuit, on the ground, 1st, that although with respect to the repairs, the terms were different from those stated in the two first counts, yet the other breaches in those counts, not depending on any agreement, should have been gone into ; 2dly, that the land having been meadow many years, and acquired the properties of meadow, the defendant was not entitled to plough it, and the plaintiff should have a verdict on the third count.

The Court gave no opinion whether a tenant from year to year was by law bound to leave in repair; but said, that the agreement being that the landlord should repair, the plaintiff had not proved the agreement laid, and could not recover for any thing on those counts; and that the defendant was at liberty to plough up what he had laid down. Buller J. added, that the third count being on a tort, without any custom or contract alledged, could not be joined with the other counts, which were grounded on contracts.-Motion denied.

the land, and for that cause the court held the declaration to be bad; as also, because on a demise, an action of debt, and not assumpsit, was maintainablea.

So, where the plaintiff declared that the defendant Rent due. was indebted to him in a certain sum, for rent of land demised by him to the defendant, in consideration whereof, he promised to pay him that sum on request, after verdict, it was moved in arrest of judgment, that there was no consideration to maintain the action, because an action of debt only would lie upon the first contract, being in the realty, and that assumpsit could only be maintained upon an express promise, made upon acollateral cause, as, forbearance; and if a man be bound by bond conditioned for payment of money, an action of assumpsit will not lie for it, except there be such an express promise. And judgment was given against the plaintiff.

house.

But where the declaration stated that in considera- Repair of tion that a certain part of a house was out of repair, and that the plaintiff would repair the same, the defendant promised, &c. it was held to be sufficiently certain, without shewing that any particular part of the house was in decay.

Clerk v. Palady, Cro. Eliz. 859. b Green v. Harrington, Gouldsb. 16. Mery v. Lewes, 2 Leon. 53. 3 Leon. 91. S. C. Ante 48.