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2 Graham Willmore, F. L. Wollaston & William Hodges, Reports of Cases Argued and Determined in the Court of Queen's Bench, and upon Writs of Error from That Court to the Exchequer Chamber and in the Bail Court 1 (1840)

handle is hein.elrpre/rocaaditcq0002 and id is 1 raw text is: CAS E'S ARGUED AND DETERMINED IN TE COURT OF QUEEN'S BENCH, AND IN THE BAIL COURT, IN Hilary Term, 2 Victoria, 1839. BABsR v. HARRIS. Qee's Benek. Jan. 11. UMPSIT. The declaration contained the ordinary money counts, and An action of a count upoR an account stated, covenant will a cont uou n acoun staed.lie upon the Plea: non assumpSit. wor nt' At the trial, before Lord Denman, C. J. at the London Sittings after of as inent Michaelmas Term, 1836, it appeared that the defendant being the lessee of of alease, if the certain premises, had assigned them to the plaintiff. Some rent was in arrear tnrtd in his at the time of the assignment, for which the plaintiff was afterwards distrained san by upon, and this action was brought to recover the amount of the rent so dis- trained upon trained for. By the deed of assignment, which was in evidences the defend- rear from the ant bargained, sold, granted, assigned, &c., the premises to the plaintiff, and aignor, at the covenanted for the quiet enjoyment of them (a). Certain letters written by as ofment the defendant, after the distress, were put in for the purpose of shewing an An an action of covenant express promise to repay the amount of it. On the part of the defendant, it b main was objected, that the form of the action was misconceived, and that it ought acione no to have been covenant. Verdict for the plaintiff, with liberty to the defend- snmpsit, n ant to move to enter a nonsuit. A rule nisi having been obtained for that i impne i.. purpose, Miry, that under the cir- Bagley (in Michaelmas Term (6),) shewed cause against the rule.-Two cumstances, an propositions may be maintained, either of which will entitle the plaintiff to action of &s recover. First, where there is an implied contract arising from the relation notie, even between the parties, assumpsit will lie, even though another remedy should uponn express be in existence, of a higher order. Secondly, assumpsit may be brought upon t neow con an express promise to pay after the breach of a covenant. In Kinlyside v. such as for- Thornton (c), it wos held, that case would lie against a tenant, after the bearance. expiration of his term, for the breach of covenants in his lease. In Burnett (a) The presence of this covenant (6) November 19th. was not brought before the notice of the (c) 2 W. Black. 1109. Court. VOL. II. B

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