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![handle is hein.slavery/ssactsengr0986 and id is 1 raw text is: HIL. TERM, 8 AND 9 WILL. 3
J. S. at the special request of the defendant, which amounted to so much, super se
assumpsit to pay the plaintiff, &c. Verdict for the plaintiff, and entire damages were
given. And it was moved in arrest of judgment, that every promise is a distinct
declaration, and that in the second promise (which for greater reason might be
esteemed a new count, by virtue of the words cumque etiam) non constat who made
the promise, J. S. or the defendant. Perhaps it was J. S. and then it will not bind
the defendant. Then damages being given rattione primissorum vitiates the whole,
for th e word pr--missorum extend, t,' both the breaches assigned. And tbi.. r146]
uncertainty is not aided by the verdict, and it cannot be made good by intendment;
for the promise is the gist of the action; and the gist of an action, though after
verdict, cannot be taken by intendment. Noy 50. Cro. Eliz. 913. Trin. 4 Jac. 2,
B. R. Rot. 993, London vers. Hart.
But e contra it was argued for the plaintiff, that it shall be intended, that the
defendant assumed ; for the money paid was to his use, and at his request. Besides
that, if the defendant shall not be the nominative case to assumpsit, then there is no
promise; for it has no nominative case, and so no damages were given for it, but for
the breach of the other promise, and to it premissorum must relate. But it would
have been otherwise if there had been a promise, but not a binding one in law for
some collateral account; because the jury not knowing the law, might be supposed
to consider it as a promise, and so give damages for it. But here there is no promise,
and therefore no damages given for it. But judgment was given for the plaintiff,
because the cunque etiam in effect is all one with ac etiam, and so couples both the
sentences together, and makes the defendant the nominative case to govern the
second assumpsit as wel! ag the firet- For the plaintiff's cause of action ariseG from
both the promises; and it cannot be supposed, that the plaintiff would bring an
assumpsit against the defendant, because J. S. made the promise. See 1 Sid. 222.
Latch, 151, 272. Per Holt Chief Justice, if divers considerations are mentioned in
one assumpsit, and one of them is void and the others good, and damages are given
ratione prmissorum, this will not arrest the judgment, because the damages shall be
intended to be given only for those that are good.
CHAMBERLAIN vers. HARVEY.
S. C. Carth. 396, with the arguments of counsel 5 Mod. 186. Entry, vol. 3, 129.
No man can have property in the person of another while in England. Therefore
trespass will not lie, unless with a per quod, for taking a negro slave in England.
Trespass lies for the taking an apprentice.
Trespass for taking of a negro pretii 1001. The jury find a special verdict; that
the father of the plaintiff was possessed of this negro, and of such a manor in
Barbadoes, and that there is a law in that country, which makes the negro part of
the real estate: that the father died seised, whereby the manor descended to the
plaintiff as son and heir, and that he endowed his mother of this negro and of a third
part of the manor; that the mother married Watkins, who brought the negro into
England, where he was baptized without the knowledge of the mother; that Watkins
and his wife are dead, and that the negro continued several years in England; that
the defendant seized him, &c. And after argument at the Bar several times by Sir
Bartholomew Shower of the one side, and Mr. Dee of the other, this term it was
adjudged, [147] that this action will not lie. Trespass will lie for taking of an
apprentice, or haeredem apparentem. An abbot might maintain trespass for his
monk; and any man may maintain trespass for another, if he declares with a per
quod servitium amisit: but it will not lie in this case. And per Holt Chief Justice,
trover will not lie for a negro, contra to 3 Keb. 785, 2 Lev. 201, Butts v. Penny.
Hill. 5 Will. & Mar. C. B. between Gelly and Cleve, adjudged that trover will lie
for a negro boy; for they are heathens, and therefore a man may have property in
them, and that the Court, without averment made, will take notice that they are
heathens. Ex relatione m'ri Place.
Pasch. 5 Ann. B. R. Smith v. Gould, post, 1274, adjudged that it lies not.
1 liD. RAYMl. 146.](ViewImageLocal?handle=hein.slavery/ssactsengr0986&div=1&collection=&method=preview&ext=.png&size=3)