turn of the poftea judgment may be given by the court to which the return is made.

If a retainer as chaplain to a perfon of quality be neceffary Lit. Rep. 1. 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 feal of the person of quality, is good.

If the ordinary be not named, he may prefent by lapfe, if the Cr. J. 93. 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 im- Hob. zot. pedit, he fhall not prefent by lapfe, is to be understood with fome 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 course to stop strangers from presenting pendente brevi, Cr. J. 931 is to fue a ne admittas to the bishop, and if the bishop then admit the clerk of any other hanging the fuir, and the plaintiff recover, he shall have a q. incumbravit, and thereby remove fuch person so admitted, and put him to his q 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 fei. fa. and fhall hold it, and therefore, if the jury find the church full by the prefentment of a ftranger, a writ fhall not be awarded to remove the incumbent without a fei. fa. first sued out. By the 21 H. 8. c. 13. f. 9. If any perfon having one benefice with cure of fouls, of the yearly value of 8. accept and take any other with cure of fouls, and be inftituted and inducted in poffeffion of the fame, the first benefice shall be adjudg. ed to be void.

Co. Digby's

cafe.

By the inftitution to the fecond benefice, the firft is void by Hub. 166. 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 ftatute.

Keilw. 49.

By 13 El. c. 12. No title to prefent by lapfe fhall accrue up- 2 Codex 869. on any deprivation, but after fix months after notice of such deprivation given by the ordinary to the patron. The law is the fame upon a refignation: but in cafe of death no notice is neceffary.

2 Inft. 361.

Bp. of Meath. u. Ld. Belfield, Tr. 21 G. 2.

> Barnes 2.

Such a commif

the prothono

taries.

Note; The computation is to be according to the calendar and not the lunar months, and the day the church became void is to be taken into account.

Where the inftitution takes no notice of whofe prefentation, it has been faid that the party may give evidence of general reputation; for a prefentation 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 single fact which is not the fubject of notoriety, fuch evidence seems to be mere hearfay; and it differs from the cafe of proving a marriage, for there the reputation arifes from the cohabitation; fo of the retainer of a chaplain, from his acting as such; fo of filiation, Sc.

By 12 Ann. c. 14. Papifts are difabled to prefent to any befon directed to nefice, and the right of prefentation is given to the univerfities; and the ftatute enacts, that where any quare impedit is brought either by or against the university, the court may upon motion make a rule, requiring fatisfaction upon the oath of fuch patron and his clerk (who fhall conteft the right of the univerfity) by examination in open court, or by commiffion, or by affidavit, in order to difcover any secret truft or fraud relating to the presentation in question; and if it appear that the patron is a trustee, he fhall difcover for whom, and the court may order the ceftui qui truft to appear and make the declaration, &c.

Cr. J. 145.175.

2 Str. 931.

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 ftatute, the court of king's bench 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 intereft on that feems to be all he is entitled to.

PART

で

PART II.

Containing ONE BOOK.

Of Actions founded upon Contracts.

INTRODUCTIO N.

MUTU

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, felf-intereft is so prevalent, that very few would be adhered to, and confequently very few made. Thus the chief advantage of fociety would entirely fail, unless its laws were fo framed as to bind its members to a strict performance of their contracts, compelling them to make an adequate fatisfaction for the breach of them.

Hence fprings a new fet of actions very different from thofe treated of in the first part of this work, and they are ac tions founded upon contract: Such are actions of

Jaggard v.
Flitt, Hil. 26
& 27 Car. 2.
B. R.

om. 272.

Hob. 36.

2 R. A.683.

CHAPTER I.

Of Actions of Account.

THE action of account is of late years but rarely used, therefore I fhall fay very little upon it. At common law it lay only against a guardian in focage, 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 adminiftrators. 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 administrators.

If the plaintiff in his declaration fay not by whose hands, if the defendant demur specially he will have 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 seems 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 by whofe hands.

In account against one as receiver by the hands of A. a receipt by his hands ought to be proved. But if he prove that 4. 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 give a F. 1 Brownl.24 releafe in evidence, neither can he give in evidence bailment to deliver to B. and that he has delivered 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 fubftance.

Cr. Car. 116.

In the action of account there are two judgments; the first is quod computer, after which the court affigns auditors, before

whom

whom nothing fhall be allowed as a good discharge, which might have been pleaded to the action.

If the defendant plead any matter in difcharge before the auditors, which is denied by the plaintiff, fo that the parties are at iffue, the auditors muít 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 fei. fa. upon the firft judgment. Note; The defendant cannot in this action pay money into court, as he may in affumpfit.

Per Willes Ch.
J. Tr. 27 G.2.

CHAPTER II.

Of Affumpfit.

Fall actions founded upon contract, none is in more general use 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 forts of affumpfit, First, a general indebita- Cr. J. 206. tus affumpfit. Secondly, a special affumpfit.

Indebitatus affumpfit will not lie where the debt is due by fpecialty, for in such case the specialty ought to be declared upon; therefore it is always neceffary in this action to fhew for what cause the debt grew due; and in cafe it be not fhewed, it will be fufficient reason to arreft judgment, or to reverse it upon a writ of error.

The general causes 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 a fum certain (viz. 107.) for goods fold and delivered. Fifthly, for goods fold quantum valebant. Sixthly, for a fum certain for work and labour. Seventhly, a quantum meruit for work and labour. Eighthly,

on an account stated.

1 R. A. & Hut. 35