4 Am. Dec. 512 | Va. | 1809
In considering this case, it will first be necessary to examine whether the evidence stated in the defendant’s demurrer be sufficient for a Jury to have found a verdict for the plaintiffs, upon either of the counts in the declaration.
The demurrer to evidence states, that in "June, 1787, a conversation passed between the plaintiff and the defendant, wherein the former told the latter, 44 that he 44 had greatly deceived the plaintiff, as to the thirds of the 44 land.” The defendant replied, “ that he had., but 44 that he had written to his brother concerning the busi- “ ness, and got his answer, and that it should be settled “ directly ; and you,” meaning the plaintiff, 44 shall be 44 paid therefor to your satisfactionIt is impossible not to understand this conversation, as relating to some prior agreement between the parties, respecting the land which is alleged to have been in the occupation of the defendant. It is impossible not to understand it as re* cognising the plaintiff’s right thereto, and the defendant’s obligation to make him satisfaction for the enjoyment he had had of it, which he had failed to do, according to some previous promise; the acknowledgment of the defendant, that he deceived the plaintiff, will admit of no other construction ; for unless he had promised, he could not have deceived him. The subsequent promise, that the plaintiff should be paid therefor to his satisfaction, is amply sufficient to support the second
The next question is in the nature of a motion in arrest of judgment; namely, whether this action of assumpsit, for the use and occupation of a plantation, lies in this country.
We are told by Mr. Espinasse, (1 Nisi Prius, 20.) that the action of assumpsit for use and occupation was given by stat. 11 Geo. II. c. 19. which was never in force in this country. Judge Butter, in his treatise on the same subject^ p. 138. says, at common law it was holden, that assumpsit would lie for rent on an express promise; but not upon an implied promise ; and such express promise must have been made, at the same time with the lease ; and for this he cites 3 Lev. 150.
Mr. Espinasse does not appear to be altogether correct in this passage. The action for use and occupation was not given by the statute of George: it had been used at least from the time of James the first, as the case of Dartual v. Morgan
I shall now notice some cases where actions similar to the present have been brought.
The case of Darinal v. Morgan(b) was an action of assumpsit: “ Whereas the plaintiff loeasset to the de- “ fendanl a certain warehouse, the defendant assumed “ to pay him, for every week that he occupied it, eight, “ shillings ; and alleges, in fact, that he occupied it “ twenty-seven weeks ; for which, upon not paying “ upon request, the action war. brought. Upon non as* “ sumpsit, and verdict for the plaintiff, the, defendant “ moved, in arrest of judgment, that this is a lease, (at. “ least at will,) and the eight shillings weekly is in na» sl ture of rent, and for rent reserved in the lease, (which “ sounds in the realty,) assumpsit lies not; nor for ic debt, upon a specialty, or upon record. But here.¿ forasmuch as this is not a lease, but a promise* e‘ that as long as he permitted him to occupy the ware-e‘ house he would pay it, it is not any rent, but merely a promise in consideration of occupying, &c. Where- “ fore this action well lay ; and it was adjudged for the •« plaintiff.”
The case of Bard v. Bard
In Sleeck v. Bowsal,
How v. Norton,
Professor Wooddeson, speaking of the action of assumpsit, (vol. 3. p. 152.) says, "We have heretofore seen 44 that it cannot be brought on a writing under seal
I am, therefore, of opinion, that the judgment be afr , iirmedo
As the declaration in this case states an express promise to pay for the use of the land of the appellee, of which it is further stated, a he had, before that time, by the permission and assent of the appel- “ lant, had the use and occupation,” I have no doubt but that the action is sustainable. But, understanding that the point presented by the case of Sutton v. Mandeville is, whether this action is maintainable without proof of an express promise, I have not anticipated the consideration of that question ; though I doubt not that the doctrines mentioned by the Judge who preceded me, on that point, are correctly stated.
t Upon the demurrer to evidence I think the District Court decided correctly, and am for affirming the judgement.
Cro.Jac.508
1 Lev.179.
Green v. Harrington, Hob. 234. 1 Brownl. 14. Hutt. 34. S.C. Vid. etium 1 Danv. Ab. 28. Actions, (O.)
Cro. Jac. 593.
Ibid. 608.
Cro. Jac. 568.
1 Lev.l79.
1 Few. Rep. 387.