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Barstow now moved to quash the writ of certiorari and the allowance thereof for irregularity, no recognizances having been filed pursuant to 5 Geo. 2, c. 19, s. 2. It is true that it has often been held that the various restrictions imposed upon parties suing out a certiorari are applicable to defendants only, and the doctrine was very recently acted upon in Rex v. Boulthee (a). That case was decided on the Game Act, 1 & 2 Will. 4, c. 32, s. 45. But the words of the statute now relied upon are most comprehensive, and apply to the prosecutor as well as the defendant. The statute, after reciting that writs of certiorari are often used to very bad purpose in removing judgments of sessions, enacts “ That no certiorari shall be allowed to remove any such judgment or order, unless the party or parties prosecuting such certiorari, before the allowance thereof, enter into a recognizance, with sufficient sureties, before one or more justices of the peace of the county or place, or before the justices at their general quarter sessions, or general sessions where such judgment or order shall have been given or made, or before any one of his majesty's justices of the said Court of King's Bench, in the sum of 501., with condition to prosecute the same," &c.

Lord Denman C. J.--The practice has been uniform, for a great many years, to apply the statutable regulations for suing out a certiorari to defendants only, and we must not depart from that practice.

LITTLEDALE, Williams and Coleridge, Js. concurred,

Rule refused.

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1839.

Friday,

BABER v. HARRIS. January 11th. Defendant, ASSUMPSIT for money lent, money paid, money had and who was lessee of certain pre. received, and on an account stated. Plea: non assumpsit. mises, granted At the trial before Lord Denman C. J., at the London and assigned them by in- sittings after Michaelmas term, 1836, it appeared that the denture to the defendant, who was the lessee of certain premises, had plaintiff, who, having been assigned them to the plaintiff, and that at the time of the distrained upon for rent in assignment certain rent was in arrear, for which the plaintiff arrear to the

was subsequently distrained upon. The action was brought superior landlord before the to recover the amount paid under the distress. A deed of assignment,

assignment was put in evidence, by which the defendant brought assumpsit to re- bargained, sold, granted, assigned, transferred, and set over ney paid under the premises to the plaintiff, and entered into the usual the distress, covenant for quiet enjoyment(a). Some letters, written after on an express the plaintiff's goods had been distrained, were also produced, promise by de- which, it was contended, amounted to an express promise fendant to repay it:-Held, on the part of the defendant to repay to the plaintiff the that as cove

amount of the distress. It was objected that the plaintiff nant would lie on the co- had misconceived his form of action, which should have been venant implied in the word

covenant, and not assumpsit, and Schlencker v. Morsy (6) “grant,” as- was cited. Verdict for the plaintiff, with liberty to the sumpsit would not lie

defendant to move to enter a nonsuit. implied con

Stammers, in Hilary term, 1837, having obtained a rule tract to indemnify the plain- nisi, tiff, nor on the express promise, which

Bagley, in Michaelmas term (c), shewed cause. It is was not found- questionable whether any covenant is contained in the deed of ed on a new consideration. assignment upon which the plaintiff could have sued. At all

events it is only an implied covenant. There is an implied contract on the part of the defendant to indemnify the plaintiff against any liability for rent due before the assignment, upon which assumpsit will lie, although there should also

on any

(a) This covenant was not mentioned at the bar.

(6) 3 B. & C. 789; S.C. 5 D. & R. 747.

(c) Nov. 19, before Lord Denman C. J., Patteson, Il'illiams and Coleridge Js.

1839.

BABER

V. HARRIS.

be an implied covenant to the same effect arising out of an instrument under seal. An implied contract may be superinduced when it is not inconsistent with, and is altogether independent of, the original contract. The defendant was guilty of a breach of duty for which case would lie. Case lies against a tenant after the expiration of his term, as well as covenant, for the breach of covenants contained in his lease; Kinlyside v. Thornton (a). In Burnet v. Lynch (b), where the lessee by deed-poll assigned his interest, subject to the covenants in the lease, and afterwards brought case against his assignee for non-performance of such covenants, it was contended that the form of action should have been covenant on the implied covenant, or assumpsit on the implied promise entered into by the assignee. The Court there held that case was properly brought, and Littledale J. observed, “Where from a given state of facts the law raises a legal obligation to do a particular act, and there is a breach of that obligation, then although assumpsit may be maintainable upon a promise implied by law to do the act, still an action ou the case founded in tort is the more proper form of action.” Hancock v.

Hancock v. Caffyn (c) is a strong authority for the plaintiff. Caffyn having a lease of a house, let one Nicholles into possession, by an agreement under seal, in which he covenanted to grant Nicholles a lease, when Nicholles should have paid, for furniture &c., 12001., which he was to do by instalments in three years, and he covenanted in the meantime to pay Caffyn a certain rent. Nicholles paid the rent to Caffyn, but Caffyn did not pay rent to his superior landlord, and it was held that case lay against Caffyn, at the suit of the assignees of Nicholles, for the damage sustained by him in having been distrained upon by the superior landlord. Case, therefore, might have been brought by the present plaintiff for the defendant's breach of duty, and if so, assumpsit also is maintainable for breach of the contract, implied in the relation established

(a) 2 W. Bl. 1111.

& R. 368. (1) 5 B. & C. 589; S. C. 8 D. () 8 Bing. 358.

1839.

BABER

v. HARRIS.

between the parties. The letters are evidence of an express promise to pay the amount distrained for, and after verdict the Court will intend that an express promise has been proved; Sir John Trever v. Roberts (a). Assumpsit lies upon an express promise made after the breach of a covenant. Thus it lies for rent upon an express promise, for it appears then that the defendant intended to give a double remedy; Com. Dig. Action on the Case upon Assumpsit (C), citing 3 Lev. 150. So where plaintiff and defendant covenant by articles of partnership to account and settle the balance, assumpsit lies on an express promise to recover the balance struck; Foster v. Allanson (b), and Moravia v. Levy in a note to that case. In Schlencker v. Morsy (c), after the event, guarded against by the deed, had actually happened, there was no express promise to support the action; so also in Bulstrode v. Gilburn (d), the covenant, on which the plaintiff had a remedy, was an express covenant, and there was no subsequent promise to pay, which distinguishes both those cases from the present. No hardship is cast on the defendant by bringing assumpsit, as judgment recovered in this action could be pleaded to a subsequent action of corenant; Blake's case (e).

Slammers, contrà. No principle is more clearly established than that a plaintiff cannot bring assumpsit when he has a remedy of a higher nature; i Chitty on Plead. 103, 6th ed.; 1 Rolle's Abr. 11, tit. Action sur Case, pl. 90, and 517, tit. Covenant, pl. 3. That principle is not at all shaken by Kinlyside v. Thornton (f ), and Burnet v. Luch(g), where case was held maintainable, because no action of covenant lay. In Foster v. Allanson ((,), and Moravia v. Levy, an account had been stated between the parties, which formed a new consideration for the express

(a) Hard. 366.
(6) 2 T. R. 479.

(c) 3 B. & C. 789; S. C. 5 D.
& R. 747.

(d) 2 Str. 1027.

(e) 6 Rep. 43 b.
(f) 2 W. Bl. 1111.

(8) 5 B. & C. 589; S. C. 8 D. & R. 368.

1939.

promise to pay the balance. The covenant in this case was
express, and according to Schlencker v. Morsy (a), the law
will not imply any promise in such a case.
promise makes no difference, unless it be made on a new
consideration; Green v. Harrington(b), and Anonymous (c).

An express

BABER

v. llarpis.

Cur. adv. vult.

Lord Denman C. J. now delivered the judgment of the Court:— The only question in this case is, whether, under the circumstances, an action of covenant could be maintained upon the indenture of assignment from the defendant to the plaintiff; for if it could, no action of assumpsit upon an implied promise to indemnify will lie. This doctrine is clearly established in many cases, amongst others, in Bulstrode v. Gilburn (d), Toussaint v. Martinnant (e), and Schlencker v. Moxsy (a). An express promise to pay, if proved, which it was not, could make no difference, at all events without a new consideration such as forbearance, and nothing of that kind was attempted to be shewn.

Now it is said that this indenture does not contain any express covenant to indemnify against the rent due to the superior landlord, nor for quiet enjoyment. But if the plaintiff be disturbed in his possession, which he is when distrained upon for rent, an action of covenant will lie upon the word “grant,” in the indenture of assigument, which brings this case directly within the authorities above alluded to. This rule for a ponsuit must therefore be made abso, lute.

Rule absolute.

(q) 3 B. & C. 789; S.C. 5 D. & R. 747.

(6) Hutton, 34.

(c) Cowp. 128.
(d) 2 Str. 1027.
(e) 2 T. R. 100.

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