Pitcher against Tovey
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1793 |
| Date | 01 January 1793 |
| Court | High Court |
English Reports Citation: 87 E.R. 268
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS, EXCHEQUER.
[71] cake 28. pitcher against tovey. Trinity Term, 3 Will. & Mary, Roll 61. On a covenant for the lessee and his assigns to pay so many bottles of wine and so much money as a rent; if the lessee die, and his executor assigns the term, the lessor cannot maintain covenant against such assignee, for arrears due after his (a) Cro. Jac. 290. Yelv. 209. Moor, 124. (b) Cro. Car. 396. (c) 2 Roll. Abr. 396. (d) Allen, 10. 2 Saund. 413. (e) But see the opinion of Holt, Chief Justice, S. C. Skin. 319. ) Cro. Eliz. 833. 1 Roll. Abr. 411. Moor, 644. Vaugh. 271. 4 MOD. 72. HILARY TERM, 3 WILLIAM AND MARY. IN B. R. 269 assignment of the term to another, altho' the lessor had no notice of the assignment made by the first assignee.-S. C. 1 Salk. 81. S. C. 2 Vent. 234. S. C. 3 Lev. 295. S. C. 1 Show. 340. S. C. Garth. 177. S. C. 12 Mod. 23. S. C. Holt, 73. S. C. 1 Freem. 326. Error to reverse a judgment given in the Common Pleas in an action of covenant, wherein the plaintiff declared, that she was possessed of certain houses in St. Martin's Lane for a certain term of years, and that she demised the said houses to Richard Gill for twenty-one years under a certain rent, which he covenanted to pay ; that before the sealing of the lease, it was indorsed for the payment of twelve bottles of canary wine every year to Christian Tovey the lessor, &c.; that the lessee entered &c. and made his will, and did thereby constitute Susan Gill sole executrix thereof, and soon after died ; that the said executrix proved the will, and entered upon the premises, and assigned the term to the defendant Thomas Pitcher, who entered and was possessed, &a. ; that he the said Pitcher had not performed the covenants ; and assigned the breach in non-payment of twenty-four bottles of sack, which was due for two years, and also for arrear of rent, after the assignment made to him by the said executrix Susan Gill. The defendant Thomas Pitcher pleaded, that before the said wine and rent became due, he assigned his interest to James Mott; [72] but did not plead notice given to the plaintiff, or that she had accepted the rent. And upon a demurrer to this plea, judgment was given, in the Common Pleas, for the plaintiff. A writ of error was brought in the Court of King's Bench, and the common error assigned. The questions both in that Court, and in the King's Bench were, First, whether the defendant Pitcher ought to have pleaded, that he had given the plaintiff Tovey notice ? Secondly, if such notice was necessary, yet whether this action would lie against the defendant after this assignment made by him to Mott, &c. Those who argued for the plaintiff in the action would have the defendant still liable, notwithstanding the assignment, without he had pleaded notice thereof; because otherwise the plaintiff' could not tell against whom to bring the action, or where to have his remedy : for if he sue a wrong person, he must discontinue and pay costs, and he cannot bring it against the right one, without having notice who he is. This was the very reason of the judgment given in the case of Kujhley v...
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