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assault, or false imprisonment, and any one or more of them shall be upon the trial thereof acquitted by verdict, every person so acquitted shall have his costs in like manner as if a verdict had been given against the plaintiff and acquitted all the defendants, unless the judge, before whom such cause shall be tried, shall, immediately after the trial thereof in open court, certify upon the record under his hand, that there was a reasonable cause for making such person a defendant to such action."
In assault and battery against several defendants, one let judgment go by default, and the others pleaded not guiltyh. On the trial, the jury gave damages against him who had suffered judgment hy default, and found the other defendants not guilty. Wilmot, J. being desired to certify that there was a reasonable cause to make the others defendants, said, he thought the stat. 8 and 9 W. 3. c. 11. s. 1. did not extend to this case, but only to cases where some of the defendants are convicted by verdict, and others acquitted. In this case it is as if they had severed in pleading, and as if the action was against the others only; and on these grounds he refused to certify.
By stat. 3 and 4 W. 4. c. 42. s. 32. “Where several persons shall be made defendants in any personal action, and any one or more of them shall have a nolle prosequi entered as to him or them, or upon the trial shall have a verdict pass for him or them, every such person shall have judgment for and recover his reasonable costs, unless, in the case of a trial, the judge before whom the cause shall be tried, shall certify upon the record under his hand, that there was a reasonable cause for making such person a defendant in such action.”
By stat. 8 and 9 W. 3. c. 11. s. 4. “In all actions of trespass, commenced or prosecuted in any of his Majesty's courts of record at Westminster, wherein at the trial of the cause it shall appear, and be certified by the judge under his hand, upon the back of the record, that the trespass upon which any defendant shall be found guilty was wilful and malicious, the plaintiff shall recover not only his damages but full costs.
Of the Certificate under the 43 Eliz. to deprive the Plaintiff of Costs. The preceding statutes enable plaintiffs, by means of the judge's certificate, to recover full costs; it remains only to mention the 43d Eliz. C. 6. s. 2. which empowers
& See Furneaux v. Fotherby and an
other, 4 Campb. 137.
h Collins v. Harrison and others, Wor
cester Lent Ass. 1757. MSS.
judges in all personal actions, not therein excepted, to deprive plaintiff's, by means of a certificate, which may be granted under certain circumstances, of the benefit of full costs. The provisions of this statute are the followingi: “If upon any action personal, brought in any of the king's courts at Westminster, not being for any title or interest of lands (13), nor concerning the freehold or inheritance of any lands, nor for any battery, it shall appear to the judges for the same court, and so signified or set down by the justices before whom the same shall be tried, that the debt or damages to be recovered therein shall not amount to the sum of forty shillings or above, the judges before whom any such action shall be pursued shall not award for costs to the plaintiff any greater costs than the amount of the debt or damages recovered, but less at their discretion.”
In trespass for an assault and taking a rope, the jury gave eighteen-pence damagesk. And Mr. Justice Burnet, who tried the cause, certified according to st. 43 Eliz. c. 6. in order to deprive plaintiff of costs
. The plaintiff, however, moved (as it was a new case,) for costs de incremento, pretending that here was an asportavit, which, on the 22 and 23 Car. 2. c. 9. had been always holden to carry costs. But the court in this case refused to give costs, for the st. 43 Eliz. takes in all but a few excepted cases, of which this is not one. “ And though it has not been usual to grant a certificate on this act, yet we have often known it threatened (14).” It has been holden!, that a certificate upon
1 Holland v. Gore, Sayer on Costs, 19. k Walker v. Robinson, Str. 1232. and
i 43 Eliz. c. 6. s. 2.
1 Wils. 93
(13) An action on the case, for a disturbance of or injury to the plaintiff's right of common, is not necessarily an action for any title, or interest of lands ; it may be brought in order to assert such title, or a right to such interest; or it may be brought against a mere wrong-doer, when the plaintiff's title to common is not disputed ; or against another commoner, where there is no question on the right of either party: in the two last cases it is within the statute, and the judge may certify. Edmonson v. Edmonson, 8 East, 294.
(14) In White v. Smith, Willes, C. J. in an action for taking sand on Hounslow Heath, certified under this statute. A similar certificate was granted in Bartlett v. Robbins, C. B. E. 5 Geo. 3. in an action of assumpsit, and by Kenyon, C. J. in Dand v. Sexton, 3 T. R. 37. in an action of trespass vi et armis for beating a dog, although it was urged that the statute applied to those actions only which could be brought in the county court, and that consequently it did not extend to an action vi et armis. The Court of King's Bench concurred in opithis statute may be granted after the trial of the cause, the time for granting it not having been fixed by the statute.
nion with Kenyon, C. J. as to the propriety of granting this certificate, on the authority of the preceding cases. Wright v. Nuttall, 10 B. & C. 492. S. P. where defendant was an attorney. In Emmet v. Lyne, 1 N. R. 255. Sir J. Mansfield, C. J. certified under this statute, in an action for false imprisonment; the court were of opinion, that the certificate was rightly granted, because an imprisonment did not necessarily include a battery. In Edmonson v. Edmonson, Sutton, baron, certified in an action on the case, for an injury done to the plaintiff's right of common ' by digging turves there; and the Court of King's Bench held, that the certificate was proper. See 8 East, 294, and ante, n. 13. In an action on the stat. 34 Geo. 3. c. 23. for copying and selling a pattern of a calico print, of which the plaintiff was proprietor; the stat. expressly gave the plaintiff such damages as a jury would assess, together with costs of suit, yet it was held that the judge's power to certify, under the 43 Eliz. was not taken away. Williams v. Miller, 1 Taunt. 400. And the same doctrine was laid down where the stat. gave full costs; as in an action on stat. 11 Geo. 2. c. 19. s. 19. Irwine v. Reddish, 5. B. and A. 796.
OF THE ACTION OF ASSUMPSIT.
I. Of the Action of Assumpsit, and of the Agreement
for the Non-performance of which this Action may
1. Of the General Issue, and the New Rules so far
as they relate to the action of Assumpsit.
2. Of Set-off
I. Of the Action of Assumpsit, and of the Agreement for
the Non-performance of which this Action may be main
tained. THE action of assumpsit is an action of trespass on the case, whereby a compensation, in damages, may be recovered for an injury sustained by the non-performance of a parol agreement. Agreements are distinguished, into agreements by specialty and agreements by parol. The law of England does not recognize any other distinction. If agreements are merely written, and not specialties, they are parol agreeother party
ments. The action of assumpsit is confined to agreements by parol, the action of covenantb or debt being the proper remedy for the non-performance of agreements by specialty. The essential parts of every parol agreement are, the promise or undertaking of one party, and the consideration on which such promise or undertaking is founded, proceeding from the
Sometimes the promise is expressed by the party, and sometimes it is raised by implication of law. In the former case it is termed an express, in the latter, an implied promise. In parol agreements, the law will not imply a consideration; consequently, in actions of assumpsit, a consideration must be stated and proved (1).
Of the Consideration.—Every promise, for the non-performance of which an action of assumpsit may be maintained, must be founded on a sufficient consideration (2), that is, a consideration, either of benefit to the defendant, or of benefit to a strangerd, or of damage, or of loss e, sustained by the plaintiff, at the request of the defendant; and herein the
a Per Skinner, C. B. delivering the T. R. 24. and Coukev. Oxley, 3T. R.
opinion of the judges in Rann v. 653. Hughes, D. P. 14 May, 1778, 7 T. R. d Per Gawdy and Fenner, Js. in Green351. n.
leaf v. Barker, Cro. Eliz. 194. b Bennus v. Guyldley, Cro. Jac. 505. e Per Ellenborough, C. J. in Bunn v. c Per Buller, J. in Nerot v. Wallace, 3 Guy, 4 East 194.
(1) Bills of exchange and promissory notes form an exception to this rule.
(2) It is worthy of observation that Blackstone, in that part of the third volume of his Commentaries, wherein he treats of the action of assumpsit, has not either named, described, or even alluded to the consideration requisite to support an assumpsit ; and, what is more remarkable, the example put by him in order to illustrate the nature of the action is, in the terms in which it is there stated, a case of nudum pactum : “ If a builder promises, undertakes, or assumes to Caius, that he will build and cover his house within a time limited, and fails to do it, Caius has an action on the case against the builder for this breach of his express promise, undertaking, or assumpsit.” See 1 Roll. Abr. 9. line 41. Doct. and Stud. Dial. 2. ch. 24. and Elsee v. Gatward, 5 T. R. 143. that an action will not lie for a mere nonfeasance, unless the promise is founded on a consideration. This remark ought not, neither was it intended, to derogate from the merit of a justly celebrated writer, who for comprehensive design, luminous arrangement, and elegance of diction, is unrivalled. It is possible, that the learned commentator might have selected his example from Bro. Abr. tit. Action sur le Case, 72, without adverting to the omission of the consideration. See the remarks of Mr. Justice Coleridge in his excellent edition of the Commentaries.