cock versus vivian hill Geo two b r motion in arrest of judgement Indebitatus  assumpsit lie only for a sum certain quantum to deserve for a sum uncertain in  assumpsit the plaintiff lie several count in his declaration among which be a  Indebitatus assumpsit and a quantum to deserve for pickage and stallage and a  Indebitatus assumpsit and a quantum to deserve for toll in consideration that  the plaintiff have permit the defendant to expose his corn to sale in the  market the defendant promise to pay c he jury find for the plaintiff and give  damage upon the whole declaration general it be now move in arrest of  judgement by Mr Hussey and Robinson that the verdict be general if any one of  the count be nought the plaintiff can have judgement there be two material  objection to the declaration first a Indebitatus assumpsit will not lie but  for a sum certain and second a quantum to deserve lie not W Kelynge er p for a  sum certain these objection go to the declaration in general but in particular  to the four last count in the five and seven the plaintiff declare that in  consideration the plaintiff permit the defendant to expose his corn to sale  the defendant promise to pay as much as shall be due secundum experience Inst  No toll be due of common right for good bring to a fair or market unless they  be sell and then toll to be take of the buyer but in ancient fair and market  toll may be pay for the stand c though nothing be sell but this be not good  unless by special custom a man can prescribe for toll for go W Kelynge along  the highway for it be against commonlaw and common right roll Abr Lutw what be  due be uncertain and therefore a Indebitatus assumpsit lie not the common  method in those case be to distrain Indebitatus assumpsit never bring for a  Heriot the common way be to seize or distrain so in the case of a miller the  plaintiff declare for so much toll as be due secundum experience and no toll  can be due by custom custom be local and must always be apply to a certain  place whereas the plaintiff can have no Title but by prescription which be  personal I e that he and all those who estate he have time out of mind have  certain toll g vide Rep b a as to the second objection a quantum to deserve  lie not for toll for toll in its own nature imply a certainty the declaration  be quantum hence reasonably to have to deserve without allege any custom this  imply a duty indeed but what that duty be must be ascertain by the jury c  sergeant econ the case cite in Inst and Lutw be not in point for they it be  there hold that toll for expose good to sale be not to be take unless by  special custom we have here lie it special secundum experience and so those  case make for we the case in roll Abr for toll for pass through the highway be  not like the present case for that be against common right and no custom can  establish it assumpsit lie not for a Heriot or for toll of a mill but even in  those case if the plaintiff declare that in consideration he permit the  defendant to enjoy c a assumpsit lie so in the case of toll in consideration  the plaintiff suffer the defendant to carry away his toll he promise to pay  what shall be due hence secundum experience in Inst toll be say to be a  reasonable sum of money due to the owner of the fair or market upon sale of  thing tollable within the fair or market or for stallage pickage or the like  so that the four last count be not to be confine to the sale of corn only but  for stallage and pickage also which run through the whole declaration as to  what be object that the plaintiff can entitle himself to toll by custom  because custom be local it be true in plead there be a difference between  custom and prescription Lut vent keb but in this case the plaintiff do not  entitle himself by custom but that the defendant promise to pay what shall be  due secundum experience W Kelynge it be object that a quantum to deserve do  not lie for toll we have not bring it for the toll itself but in consideration  the plaintiff have permit he to expose c the defendant promise to pay quantum  hence to have to deserve and this be lie to be at the request of the defendant  be quasi ex shrinking and in consideration of this enjoyment where money or  any other thing be due from one to another it imply a contract Indebitatus  assumpsit for a customary fine pro property secundum experience manor show Mod  lev Leon f counsel Indebitatus assumpsit will lie for toll for where any thing  be due the law imply a promise lev lev object that the consideration be not  good for that no toll be due for expose good to sale in a fair or market if so  then the last word be to be reject and it be a bare Indebitatus assumpsit in  consideration the plaintiff permit the defendant to enjoy the toll the  defendant hence promise c there be no pretence to say the quantum to deserve  lie not for pickage and stallage and this be carry through all the count  accord to Lord coke description of the word toll here be a sufficient  consideration to raise a quantum to deserve for it be not for permit he to  expose to sale in the market general which the defendant be entitle to of  common right but for permit he to expose his good in the Markethouse to which  he have no common right W Kelynge er p d counsel Tolnetum be a general word  for toll Lutw brook title toll toll may be pay in specie as well as in money  and quantum to deserve lie for pickage and stallage be a reasonable  satisfaction to the Lord for the use of his soil lev action lie for corn in  specie as where a man promise to deliver so many bushel of corn assumpsit lie  for not deliver so many bushel toll must be certain but pickage c need not it  be nothing but a reasonable satisfaction and what be reasonable may well be  put in issue blow b trespass upon the case by the Lord of a Vill eastern quod  Tolloneum to carry away mock to loosen object objection be take to the Writ  that he can not carry away the toll unless it be pay before but yet the Writ  be adjudge good for although the first word be void yet the last videlicet et  mock to loosen object be sufficient which answer another objection that toll  may be pay as well by the seller as buyer Indebitatus assumpsit will lie in  this case it be in consideration of a enjoyment which be sufficient W Kelynge  especial after verdict for then the law intend it to be ground upon a express  promise make between the party as in Hardress sir John Trevor versus Robert  Indebitatus assumpsit to pay so much money in consideration the plaintiff have  licence and permit the defendant to enjoy such land after verdict it be object  that the licence and permission amount to a demise and ergo debt ought to have  be bring and not a action upon the case but it be hold that upon a express  promise to pay rend assumpsit will lie and this be after verdict the court  will presume a express promise assumpsit lie for a copyhold fine lev  Suttleworth versus Garnet and so be hold by Raymond c I in cappers case  assumpsit by the mayor of London to have the that part of the salt of every  stranger who bring it to the port of London and though there be no reason  allege why he shall have that part yet the mayor have judgement dyer b Mod and  so rule by baron comens that Indebitatus assumpsit will lie for so many bushel  of salt from every ship h c I here be several count in this declaration and if  any one count be bad the plaintiff can have judgement the first objection be  that the demand be general for toll of good expose to sale and that the  defendant promise to pay as much as shall be due secundum experience whereas  toll be to be take for good sell only and then not due by custom but  prescription it be admit that by special custom toll may be take though  nothing be sell and so the plaintiff have lie it in his declaration secundum  experience the other part of the objection seem indeed more material that the  plaintiff can entitle himself by custom but by prescription the one be local  the other personal and this require far consideration the next objection be  that the consideration be insufficient and Indebitatus assumpsit lie not for a  demand of this nature for that there be nothing in certain lie to be due and  Indebitatus assumpsit lie not but for a thing certain this may have be a good  objection at another time but it be now after verdict and we must intend a  express promise prove at the trial for the jury have find the promise the next  objection be to the quantum to deserve that it will not lie for a thing  certain and that the consideration to induce the promise be not sufficient  here be two quantum Meruits the first be in consideration the plaintiff have  permit the defendant to bring his corn into the Markethouse he promise to pay  quantum hence to deserve it be certain this action lie not for a certainty and  toll for W Kelynge good sell in the market general must be certain but in this  case here be something superadd to the custom it be not for toll of corn  expose to sale in the market general but for leave to expose his corn c in the  Markethouse which be extra the custom and may be good consideration to raise  the promise the most material objection be to the last count which be a  quantum to deserve general pro Tolneto pro grain strike against c place in  Marketo predict quantum hence reasonably to have to deserve to answer this  objection it be say the Tolnetum include pickage and stallage and that this  word run through the whole declaration but the question be whether it can be  take so upon the face of the declaration for here the plaintiff have himself  distinguish in the declaration between the duty arise from pickage and  stallage and what be due for toll of corn and the last count be general for  toll of corn place in Marketo predict p p and l justice to the same effect  Adjournatur to be speak to again W Kelynge er p W Kelynge see prefatory note  additional case in b r