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![handle is hein.slavery/ssactsengr0987 and id is 1 raw text is: ACTION SUR LE CASE, SUR ASSUMPSIT
in arrest of judgment, that this being a charge laid upon the owner himself, the plaintiff
should have shewed a title by prescription ; sed non allocatur, for it is a charge laid on
the defendant of common right, which by law he is subject to. As one is bound to
keep his cattle from trespassing on his neighbour's ground, so he must a heap of dung,
if he erects it. Sic utere tuo ut alienum non hedas.
ACTION SUR LE CASE, SUR ASSUMPSIT.
1. SEXTON versus MILES.
[1 W. & M. C. B.]
Consideration executory is traversable : ergo a venue must be laid. 3 Lev. 311.
2 Lev. 227. 1 Show. 50, S. C.
In assumysit, the plaintiff declared, that in consideration, &c. the plaintiff would
deliver unto the defendant, &c. the defendant promised to pay, &c. and in facto dicit,
that he did deliver, but does not allege a place where ; the defendant demurred for
want of a venue, and the declaration was held ill, for a consideration executory is
traversable.
2. TOMK1NS versus BERNET.
[Hill. 5 Will. 3, 1693. At Nisi Prius in London, coram Treby Chief Justice (a).]
[Disapproved, Smith v. Bromley, 1760, 2 Doug. 697 (n.). Clarke v. Shee, 1774,
1 Cowp. 199.]
Indebitatus assumysit for money received to plaintiff's use, evidence, payment by an
obligor upon an usurious bond, and held not maintainable indebitatus assumpsit lies
for money paid by mistake or deceit, but not for money paid knowingly on illegal
consideration. 2 Lev. 3, 17, 153. 1 Lev. 164, 5, 273. Mod. Cases 77. Skin. 411,
S. C. 2 Bur. 1005. Vi. 1 T. R. 286.
Three were bound in an usurious obligation; one of them paid some part of the
money, and afterwards the obligee brought debt against another of the obligors, who
pleaded the Statute of Usury, and avoided the bond : and now the obligor, that had
paid some part of the money without cause to the obligee, brought an indebitatus
assumpsit against him to recover back that money; Treby C.J. allowed, that where a
man pays money on a mistake in an account, or where one pays money under or by
a mere deceit, it is reasonable he should have his money again; but where one know-
ingly pays money upon an illegal consideration, the party that receives it ought to be
punished for his offence ; and the party that pays it is particeps criminis, and there
is no reason that he should have his money again; for he parted with it freely, and
volenti non fit injuria. This case was cited: One, bound in a policy of assurance,
believing the ship to be lost, when it was not, paid his money; and it was held
he might bring an assumpsit for the money : one was employed as a solicitor, and had
money given him to bribe the Custom-House officers, and he laid out the money accord-
ingly ; assumpsit was brought against the solicitor for this money, and held it lay not.
(a) In Clark v. Shee & Another, Cowp. 200, Lord Mansfield says, this case has been
long exploded. In Smith v. Bromley, Doug. (3 edit.) 697, Ld. Mansfield says, that this
case has been often mentioned, and he had often had occasion to look into it ; but it
is so loosely reported, and stuffed with such strange arguments, that it is difficult to
make any thing of it. He thinks the judgment may have been right; but the reporter,
not properly acquainted with the facts, has recourse to false reasons in support of it.
The ease must have been, as he takes it, an action to recover back what had been paid
in part of principal and legal interest upon an usurious contract, and therefore the
action would not lie. So far as principal and legal interest went, the debtor was
obliged in natural justice to pay, therefore he could not recover it back : but for all
above legal interest, equity will assist the debtor if not paid, or an action will lie to
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