Lit. Rep. 1 Cr. J. 93. Hob. 201. Cr. J. 93 If a Retainer as Chaplain to a Person of Quality be neceffary to be proved, Evidence of a Copy of the Retainer entered in the Court of Faculties is not good, but the Oath of any Person who has seen the Retainer under the Hand and Seal of the Perfon of Quality, is good. If the Ordinary be not named, he may prefent by Lapfe, if the fix Months incur pendente brevi; but being named he cannot take Advantage of any Lapfe; and as he is bound, fo the Metropolitan and the King are bound. The Rule, That when the Bishop is named in the Quare Impedit, he shall not present by Lapse, is to be understood with some Restriction, i. e. That there has been an actual Disturbance before the Action brought, for elfe the Bishop shall not be oufted of his Right of Prefentation by Lapfe. The Courfe to ftop Strangers from prefenting pendente brevi, is to fue a Ne admittas to the Bifhop, and if the Bishop then admit the Clerk of any other, hanging the Suit and the Plaintiff recover, he fhall have a 2. Incumbravit, and thereby remove fuch Perfon so admitted, and put him to his 2. Impedit. But if he fue not a Ne admittas, if the Incumbent of a Stranger come in by good Title pendente brevi, he fhall bar him in a Sci. Fa. and fhall hold it, and therefore, if the Jury find the Church full by the Presentment of a Stranger, a Writ fhall not be awarded to remove the Incumbent without a Sci. Fa. firft fued out. By the 21 H. 8. c. 13.. 9. If any Perfon having one Benefice with Cure of Souls, of the yearly Value of 81. 4 Co. Digby's accept and take any other with Cure of Souls, and be inftituted and inducted in poffeffion of the fame, the first Benefice shall be adjudged to be void. Cafe. Hob. 166. 2 Codex 869. By the Inftitution to the fecond Benefice, the firft is void by the Ecclefiaftical Law, and therefore the Patron may take Notice and prefent, yet no Lapfe. will incur without Notice until fix Months after Induction, and that only in Cafes within the Statute. By 13 El. c. 12. No Title to prefent by Lapfe fhall accrue upon any Deprivation, but after fix Months after Keilw. 49. b. Notice of fuch Deprivation given by the Ordinary to the Patron. The Law is the fame upon a Refignation: But in cafe of Death no Notice is necessary. Note; Note; The Computation is to be according to the Ca- 2 Inft. 361. lendar and not the Lunar Months, and the Day the Church became void is to be taken into Account. Tr. 21 G. 2. Where the Inftitution takes no Notice of whofe Prefen- Bp. of Meath. tation, it has been said that the Party may give Evidence . Ld. Belfield, of general Reputation; for a Presentation may be by Parol, and what commences by Parol may be tranfmitted to Pofterity by Parol, and that creates a Reputation: Yet as it is a fingle Fact which is not the Subject of Notoriety, fuch Evidence feems to be mere Hearfay; and it differs from the Cafe of proving a Marriage, for there the Reputation arifes from the Cohabitation; so of the Retainer of a Chaplain, from his acting as fuch; fo of Filiation, &c. By 12 An. c. 14. Papifts are difabled to prefent to any 1 Barns 2. Such Benefice, and the Right of Prefentation is given to the a Commiffion Universities; and the Statute enacts, that where directed to the Quare Impedit is brought either by or against the Univer- Prothonotaries. fity, the Court may upon Motion make a Rule, requiring Satisfaction upon the Oath of fuch Patron and his Clerk, (who fhall conteft the Right of the University) by Examination in open Court, or by Commiffion, or by Affidavit, in order to difcover any fecret Truft or Fraud relating to the Prefentation in Question; and if it appear that the Patron is a Trustee, he shall discover for whom, and the Court may order the Ceftui que Truft to appear and make the Declaration, &c. any By 3 H. 7. c. 10. If the Defendant bring a Writ of Error, and Judgment be affirmed, the Plaintiff shall recover his Cofts and Damages for his wrongful Delay. By Virtue of this Statute, the Court of King's Bench Cr. J, 145. 175. have, upon a Writ of Error awarded Damages according to the Value of the Church found by the Verdict: But as the real Damages which the Plaintiff fuftains, is only the being kept out of the Half Year's Value, the legal Inte- 2 Str. 931. reft on that seems to be all he is entitled to, PART PART II. Containing ONE BOOK Of Actions founded upon Contracts. M INTRODUCTION. UTUAL Commerce and Intercourfe is of the very Effence of Society: But if there were no Method of compelling the Faithlefs to keep their Engagements, Self-Intereft is fo prevalent, that very few would be adhered to, and confequently very few made: Thus the chief Advantage of Society would entirely fail, unless its Laws were fo framed as to bind its Members to a frict Performance of their Contracts, by compelling them to make an adequate Satisfaction for the Breach of them. Hence springs a new Set of Actions very different from thofe treated of in the first Part of this Work, and they are Actions founded upon Contract: Such are Actions of 1. Account. 2. Affumpfit. 3. Covenant. 4. Debt. СНАР CHAPTER I. Of Actions of Account. HE Action of Account is of late Years but rarely Tufed, therefore I fhall fay very little upon it. At Common Law it lay only against a Guardian in Socage, Bailiff or Receiver, and in Favour of Trade between Merchants. The 13 Ed. 3. c. 23. gave it to the Executors of a Merchant; the 25 Ed. 3. c. 5. to the Executors of Executors, and 31 Ed. 3. c. 11. to Administrators. And now by the 3 & 4 Ann. c. 16. it may be brought against the Executors and Adminiftrators of every Guardian, Bailiff and Receiver, and by one Jointenant, Tenant in Common, his Executors and Adminiftrators against the other, as Bailiff for receiving more than his Share, and against their Executors and Adminiftrators. Car. 2. B. R. If the Plaintiff in his Declaration fay not by whofe Jaggard v. Flitt, Hands, if the Defendant demur fpecially he will have Hil. 26 & 27 Judgment; for if it were by the Hands of the Plaintiff, the Defendant may wage his Law, aliter if it were by another's Hands.-It feems this must be understood of Cafes where the Defendant is charged as Receiver only; for if he be charged as Bailiff, it is not neceffary to fhew Com. 272. by whofe Hands. In Account against one as Receiver by the Hands of Hob. 36. A. a Receipt by his Hands ought to be proved. But if he prove that A. directed the Defendant to borrow of another to pay the Plaintiff, and that the Defendant borrowed the Money accordingly, that is fufficient., If the Defendant plead ne unques Receiver, he cannot 2 R. A. 683. give a Releafe in Evidence, neither can he give in Evi- F. 1. Browni dence Bailment to deliver to B, and that he has delivered 24. accordingly for though this fpecial Matter prove he is not accountable, yet as upon the Delivery he was accountable conditionally, (viz. if he did not deliver over) it does not prove the Plea; but if the Defendant plead he accounted before R. and W. Evidence that he accounted before R. only is fufficient, because the Account is the Subftance. In the Action of Account there are two Judgments; Cr. Car. 116. the first is quod computet, after which the Court affigns Auditors, Per Willes Ch. J. Tr. 27 G. 2. Auditors, before whom nothing fhall be allowed as a good Discharge, which might have been pleaded to the Action. If the Defendant plead any Matter in Discharge before the Auditors, which is denied by the Plaintiff, fo that the Parties are at Iffue, the Auditors muft certify the Record to the Court, who will thereupon award a Ve. Fa. to try it; and if on fuch Trial the Plaintiff make Default, he fhall be nonfuited, but after that he may bring a Sci. Fa. upon the firft Judgment. Note; The Defendant cannot in this Action pay Money into Court, as he may in Affumpfit. **་ Cr. J. 206. 1 R. A. 8. Hut. 35. OF Fall Actions founded upon Contract, none is in more general Ufe than the Action of Affumpfit, which is founded upon a Contract either expreffed, or implied by Law, and gives the Party Damages in Proportion to the Lofs he has fuftained by the Violation of the Contract. There are two Sorts of Affumpfit. Firft, a general Indebitatus Affumpfit. Secondly, a fpecial Affumpfit. Indebitatus Affumpfit will not lie where the, Debt is due by Specialty, for in fuch Cafe the Specialty ought to be declared upon; therefore it is always neceffary in this Action to fhew for what Caufe the Debt grew due; and in case it be not fhewed, it will be a fufficient Reason to arreft Judgment, or to reverse it upon a Writ of Error. The general Caufes for which this Action may be brought, are either, First, for Money lent. Secondly. for Money laid out and expended. Thirdly, for Money had and received to the Plaintiff's Ufe. Fourthly, for Sum certain, (viz. 10l.) for Goods fold and delivered Fifthly, for Goods fold Quantum valebant. Sixthly, fo a Sum certain for Work and Labour. Seventhly, a Quan tun |