Thorpe v Thorpe. in B. R
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Date | 01 January 1792 |
| Court | Court of the King's Bench |
English Reports Citation: 92 E.R. 980
COURT OF KING'S BENCH, COMMON PLEAS AND EXCHEQUER
See S. C. 1 Ld. Raym. 235; 91 E. R. 1054 (with note).
[98] case 67. thorpe vers. thorpe. in B. R. [See S. C. 1 Ld. Raym. 235; 91 E. R. 1054 (with note).] It is sufficient to maintain an assumpsit, if the consideration was a benefit to the defendant, or a prejudice to the plaintiff. 1 Lutw. 245, S. C. 1 Ld. Raym. 235, 662, S. C. Holt 28, 96, S. C. 12 Mod. 455, S. C. 1 Salk. 171, S. C. 1 Mod. Ent. 111. Raym. Ent. 341. 1 Pow. on Cont. 357. Cowp. 294. 1 Com. Dig. 138. Hob. 216. Error of a judgment in theCommon Pleas in assumpsit, in which the plaintiff declared, and set forth an agreement that he was to release the equity of redemption to a certain copyhold estate, upon which the defendant agreed to the payment of seven pounds; and although the plaintiff had performed his part of the agreement, yet the defendant had not paid, &e. The defendant pleaded the release of the equity [in which were general words of release of all demands] in bar ; and the errors assigned were, first, an equity of redemption is not valuable, being a thing that is only in Chancery, and of which the common law takes no notice. Secondly, that the plaintiff ought to shew how he was intitled to the equity of redemption, for it may be that he hath an equity, and yet the release of it be of no value, although it were true that generally an equity is valuable; and this case is like the case of Barber and Fox (a), 2 Saund. 134, 136. Assumpsit against an heir upon a promise to pay a debt due by bond from his father, held ill, because it was not shewn that the heir was bound by the obligation, which shall not be intended so. Stile 245. Thirdly, that this release of the equity of redemption, having words in it sufficient to discharge the promise, may be pleaded in bar to an assumpsit founded upon the promise, because this action is not founded upon the making of the release, but upon a promise to do another thing ; and so it appears Mar. 75 (4). Cro. Eliz. 303, 703 (c), 889. And if the action is not founded upon the mutual promise, but upon the making of the release, then it ought to be averred that the plaintiff had made a release ; and it is not sufficient to say that he had performed all on his part, as appears by the reason of the ease in Cro. Car. 19. But it was objected, that the general words of the release, which was intended for a particular purpose, viz...
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