HUTTON, 66. CHITTLB V.

SAMMON 1097

when certain conditions were performed: and he pleaded that the conditions were
not performed, if it be found accordingly, yet the plaintiff shall have judgment,
Coke, lib. 2, fol. 61, Wiscots case, a lease by baron and feme, which ought to be by
deed pleaded generally, and found the plaintiff had judgment, vide Smith and
Stwpletons case.

M I C H . 20 JAG.

CHITTLE versus SAMMON.

Keplevin. Avowry for rent granted to the father in fee, without alledging that it
was arreare after the death of the father.
Chittle against Sammon in replevin, conusance for rent as bayliff to Sir John
Reves, upon a grant out of the land, whereof the place in which, &c. was parcell, upon
a grant made to the father of Sir John, and for rent arrear, &c. Issue was joyned
upon this point, if the place was parcell of the land out of which the rent was granted,
and found by verdict that it was: and now moved by Atho in arrest of judgment,
that it is not alledged that this rent was arrear after the death of the father, as it
ought to be, and therefore it may be intended that this rent was arrear in the life of
the father. But the Court agreed and resolved that it was good after verdict, for
now it is pleaded that it was arrear, and not paid to him, ergo it was due to him;
and though it might have been more fully pleaded, yet after verdict it is sufficient.

FLETCHER versus HARCOT.

Case. Assumpsit in consideration that the plaintiff (being an hostler) would keep
a prisoner to save him harmless.
[S. C. (sub-nom. Batersby's case) Winch, 48. Considered, Beits v. Gibbins, 1834,
4 Ad. & E. 75. Referred to, Burrows v. Rhodes, [1899] 1 Q. B. 829.]
An action upon the case was brought by Fletcher of Otely against Harcot, and
count, that whereas the defendant had arrested one Battersby by a commission of
rebellion, issuing out of the Court of the Lord President and Councell of the north,
as he affirmed : and whereas the plaintiff keeps a common inne in Otely, and had kept
it by the space of five years and had entertained men. The defendant request the
plaintiff to keep the said Batersby in his inne at Otely, by the space of one night, as
a prisoner, and that he would keep and save him harmlesse, and shew that he had
kept him for that night as a prisoner: and Batersby afterward brought an action of
false imprisonment against him for the said keeping of him in his house, and that he
had expended and laid out in defence thereof ten pounds: and that he had required
him to save him harmlesse, and he refused. Non assumpsit found for the plaintiff,
and moved by Harvey in arrest of judgment, that it is no sufficient consideration,
because it doth not appear that he had lawfully arrested the said Batersby, for it is
not affirmatively alledged, bub (as he said). Also it doth not appear that the recovery
in the action of false imprisonment was for the same cause; but in that he had mis-
informed, for it was in record pro custodia prsedicta, & ex causa prsedicta. And for
the other matter the Lord [56] Hobart seemed at first to doubt, if it did not appear
that it was a lawfull arrest, then there was no consideration : but because the diversity
is when the consideration appears to be for doing of a thing which is unlawful!; as
if one at the request of I. S. promise to beat I. D. and he promise to save him harm-
lesse, this is a void consideration; but if one request I. S. to enter into the mannor of
Dale, and drive out cattle, and that he will save him harmlesse if he doth so, and after
trespasse be brought against him, and recovery had, he shall have his action: so if
a sheriff pretending to have a writ, where he hath none, arrest one, and request an
inn-keeper to entertain him in his house, or hire one to conduct the prisoner to the
gaol; and promise to keep him without damage; if an action be brought, and recovery
had thereupon, the party shall have an action of the case against the sheriff upon this
promise, for he which doth a thing which may be lawfull, and the illegality thereof
appear not to him, he which imploys the party and assume to save him harmlesse,
shall be charged : and judgment was entred for the plaintiff.

C. P. I.—35*

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