John Ernly, Esq., Plaintiff; Henry Lord Falkinland, and Jo. Doddington, Esq, Defendants. See this case, post, 103
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1655 |
| Date | 01 January 1655 |
| Court | Exchequer |
English Reports Citation: 145 E.R. 349
IN THE COURT OF EXCHEQUER
REPORTS of CASES ADJUDGED in the COUET of EXCHEQUER, in the Years 1655, 1656, 1657, 1658, 1659, and 1660. And from thence continued to the 21st Year of the Reign of His late Majesty KING CHARLES II. The whole Taken and Collected by SCR THOMAS HARDRES, Kut., late of Gray's-Inn, and Serjeant at Law to His said Majesty KING CHARLES the SECOND. The Second Edition. 1792. [1] db term. sanct* tiun. anno domini 1655, in scaccaiuo. (1) john ernly, esq., Plainti/; henhy loud falkland, and Jo. dodihnuton, esq., Defendants. See this case, post, 103. In an action upon the case upon a promise the plaintiff declared, that whereas upon the 17th day of February in the year 165.'!, there was a communication between the plaintiff' and the defendants concerning an horse-race to be run the usual four mile course at Burford in Oxfordshire; upon that agreement it was concluded between the plaintiff and the defendants to run it with a bay stone-horse against a gray stone-horse on Thursday five weeks next after that day, and between the hours of 2 and 4 in the afternoon. The one rider to weigh 16 pounds more than the other, who was to weigh 10 stone; and he or they that lost, were to pay the other or others 2001. when required And whereas likewise the defendants in consideration the plaintiff promised to perform his part of the said agreement, promised to perform their part thereof; and then alleclges that although he performed his part of the said agreement, and that the race was run at the time, arid that the parties then weighed the weighers agreed on, and that the plaintiff's horse won the race, yet the defendants refuse to pay the 2001. and avers a particular request, and lays it to his damage of 3001. Upon tion assumpsit pleaded, a, verdict passed for the plaintiff and 2001. damages given him. And it was now moved in arest of judgment by Hardres for the defendants. 1. Because the promise, which is the ground of the action, is not sufficiently averred, but laid only by way of recital; viz. whereas the defendants promised, &c., which is not a direct [2] positive averment, as there ought to be In 4 Rep., Sir Gilbert Genurd'n case, it is resolved, that the word sciens is not a direct averment upon which a traverse or issue may be taken : so in 5 Hep., He-main's case, pnwnissorum non ignarus ia...
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