Hawkes v. Young

Richardson, C. J., delivered the opinion of the court. We see no reason why the plaintiff should not recover, in some way, the rent up to the 27th October, 1830, when he brought his writ of entry. 1 D. & E. 378, Birch v. Wright; 5 N. H. Rep. 531. But does assumpsit lie in this case ? No implied promise can be raised to support assump-sit where a bond has been taken. Thus assumpsit for money paid by a surety does not lie where he has taken a bond for his indemnity. 2 D. & B. 100, Toussaint v. Martinnant. It has been decided in Massachusetts, that assumpsit [302] for use and occupation wiil not lie, where there has been a demise by deed, although a special promise to pay is proved. 14 Mass. Rep. 93, Codman v. Jenkins. The same principle is recognized in many other cases. Woodfall, 348; 2 D. & E. 479, Foster v. Mason; Buller’s N. P. 138; 4 Espinasse, N. P. C. 59; 3 Starkie’s Ev. 1511; Laws, Pl. in Assumpsit, 376. In this case there was a covenant to pay rent so long as the. defendant should occupy the premises, and although there was an express promise made at the same time, by writing, not under seal, to pay the rent, we are of opinion that this action cannot be sustained. The promise is merged in the covenant. Judgment for the defendant.