Digges v. Lilly , 1 Va. Col. Dec. 119 ( 1753 )

The Pit. Declares That upon a Day and year at R — n [He] bought of the Deft. 3 Hhds of Tob’o then immediately to be delivered for 2§£ yet the Deft, tho’ often required had not delivered the Tob’o, but doth falsly and fraudulently detain the same

Upon not Guilty the Jury have found for the Pit. and 10s Damages and now the Question is whether the Pit. shall have Judgm’t upon this Declaration

And I think the Declaration is good, the Action being grounded upon a Deceit in refusing to deliver Goods after the Pit. had bought them. For tho’ the Pit. might have Declared upon the Mutual promises which are implied in every Bargain and so have founded the Action upon a Breach of Promise yet where there is a deceit he is at liberty to declare upon it 1. Ro. Abr. 10. 21. H. 7. 41. p. Tineus. If a Man sells Lands for a Certain Sum to J. S. and promise to enfeoffe him, tho he do not Enfeoff another but keeps it himself yet deceit lies against him

20. H. 6. 34. which Fr Roll is Contra Deceit is brought for Enfeoff’g a Stranger after a Bargain made with the Pit. for the Purchase and an Agreement to Enfeoff him and by the Opinion of most of the Judges it is maintainable, and Aysiough there says there is no difference betwe’n Enfeoffing another and retaining the Land himself and that in neither Case Deceit lies but Covenant. Old Book of Entries 48. b. There is a Precident of a Decl. in deceit wherein the Pit. Declares that he bo’t of the Deft. 4 Acres of Land for a certain Sum of Mo in hand p’d & the Deft, promised to deliver Seizin theréon within a certain time then past yet he falso et fraudulenter Enfeoffed one & refused to deliver Seizin thereof to the Pit.

[120] Robinsons Entries 29. There is a Precident where the Pit. declared upon a Bargain for all the Wool growing upon the Defts. Sheep to be delivered to him at a price agreed every Year during their lives And that the Deft, for several Years sold it to Persons unknown Plita General and Pial¹ 14H9. There are two other Precedents of the same sort

Obj. And tho’ there is an assumpsit laid in those Declarations to deliver the Wool it was not so Essential but that it might have been omitted and any other word Expressing the Agreement wou’d have been as well As in this Case the Pits, declaring that he bought of the Deft, three hhds of Tob’o then immediately to be delivered for so much Money is as Expressive as if it had been say’d the Deft. Promised to deliver it

In the Case of Kirby & Coles Cro. Eliz. 137. The Pit. declared that there was a Communication between him and Cooper for the Mast’g Certain Hoggs and in Consideration that the Pit. gave Cooper three Shillings for every hogg well Masted the Deft, promised they shou’d be well fatted and redelivered, to which Promise the Pit. giving Credit delivered 50 Hogs, and because they were not redelivered the Action was brought. After a Verd’t it was moved in Arrest of Judgment that there was no Consideration to Charge the Deft. But by Wray & Clynch ag’t Gawdy the Action is maintainable being grounded upon the Promise and Deceit Indeed where the Promise is the sole foundation of the Action there the word Assumsit is material As in the Case of Buckler and Angel 1. Sidf. 246. The Pit. Declares that in Consideration that he had procured I. S. to Surrender a House the Deft. Solveret the Pit. 10;6 and after a Verdict Judgm’t stay’d because no Assumsit is laid

Yet same Case is Reported Raym. 123. and there Chief Justice Keiling held it only matter of Form and S. C. is Reported 1. Lev. 164. There the Exception is that as there was no Promise Non assumsit was no Issue to be tried and for that Reason Judgm’t was Stay’d

Vid 2. Keb. L. P. Adjourned and 1. Sidf. 306. Mr. Holloway Cited Plowd. 303. 309. If a Man buy a Horse and pay no money no Action lies for the money for the Horse and here is Nud Pact Motion overruled.

1 W. G. writes above — et special — for “and Pial,” as in the MS.