SIT. 1. ASSUMP- tion aggregate may maintain assumpsit for the use and occupation of buildings, or land, or tolls, though they did not grant the tolls to the occupier by any instrument under their common seal (g). On a sta tute. On a judg ment. Though a statute may in some respects be considered as a specialty (h), yet assumpsit may be supported for money, &c. accruing due to the plaintiff under the provisions thereof (272), he not being thereby restricted to any other particular remedy (i). The order of an inferior Court of justice may be the subject of this action, if there be an express agreement to observe the same (k). This action is also sustainable upon the judgment of a foreign Court (273), which is not considered as a debt of record in this country (1); and it lies upon an Irish judgment (m) (274), and upon a Scotch decree (n). But nei[*121] ther assumpsit nor debt *can be sustained on the decree of the Court of Chancery for a specific sum of money, founded on equitable considerations (g) Mayor of Stafford v. Till, 12 Moore, 260; The Mayor and Burgesses of Carmarthen v Lewis, 6 Car. & P. 608. (k) Saund. 37, 38. (i) Bul. N. P. 129; Cowp. 474; Doug. 10, n. 2, 402, 407; 5 T. R. 130; Com. Dig. Action upon the Statute. See post, 128. (k) 2 B. & P. 484. (2) 1 Dougl. 4; 11 East, 124. When not, I Campb. 63, 253. (m) 4 B. & C. 411; 6 D. & R. 471, S. C. (n) 4 Bing. 686; 1 M. & P. 663, S. C. (272) Assumpsit will not lie to recover back money won at play. Billon v. Hyde, 1 Ves. 330, S. C. 1 Atk. 128. It should be debt, if the party sue under the stat. 9 Ann, c. 14. Turner". Warner, Andr. Rep. 70. Bristow v. James, 7 Term Rep 257. In Pennsylvania the action may be debt or case. Act of 22d April, 1794. 3 Sm. Laws, 182. Aliter in Massachusetts, if the action be brought within three months from the losing of the money. Babcock v. Thompson, 3 Pick. Rep. 446. } (273) Vide Phil. Ev. 242, 243. Buttrick and wife v. Allen, 8 Mass. Rep. 273. Bissel v. Bridges, 9 Mass. Rep. 464. Hubbell v. Coudrey, 5 Johns. Rep. 132. (274) As to the effect of a judgment obtained in one of the United States, when made the subject of an action in another, (respecting which the courts in this country have va ried essentially from one another, some, as the Supreme Court of New York, regarding t merely as a foreign judgment, and others allowing it greater weight,) see Armstrong. Carson's Ex'rs, 2 Dall. 302. Bartlett v. Knight, 1 Mass. Rep. 401. Bissell Briggs, 9 Mass. Rep. 462. Hitchcock and Fitch v. Aicken, 1 Caines' Rep 460. Taylor v. Bryden, 8 Johns. Rep. 173. Hubbell v. Coudrey, 5 Johns. Rep. 132. Phillips' Ev. Duni. Ed. 254. n. Pauling and wife v. Wilson and Smith, 13 Johns. Rep. 192. But in Mills v. Duryee, in the Supreme Court of the U. S., 7 Cranch, 481, it was held that nil debet was not a good plea to an action of debt founded on the judgment of another State; because such judgment was conclusive between the parties, such being the effect to which it was entitled in the State where rendered, and therefore it could only be denied by the plea of nul tiel record. The same point was decided in Hampton v. M'Connel, 3 Wheat. Rep. 234. See Jones's Adm. v. Hoar's Adm., 2 Rand. Rep. 303. The decision in Mills v. Duryee has been acquiesced in by the courts of New York, (Andrews v. Montgomery, 19 Johns. Rep. 160,) subject to these qualifications, that the party against whom judgment was rendered is not to be precluded from showing, that such judgment was fraudulently obtained, or that the State court had not jurisdiction of the person of the defendant. Borden v. Fitch, 15 Johns. Rep. 121. Nil debet, however, is a proper plea in an action of debt on a judgment recovered before a justice of the peace of another State. Warren T. Flagg, 2 Pick. Rep. 448. In the case of Aldrich v. Kinney, 4 Conn. Rep. 380, Ch. J. Hosmer reviews all the decisions, and comes to the conclusion, that the records of the courts of other States are conclusive in cases only where they had jurisdiction of the cause, and of the person of the defendant. In Hall v. Williams et al., 6 Pick. 237, Ch. J. Parker has expressed the opinion that in all instances the jurisdiction of the court rendering the judgment may be inquired into. The court were further of opinion, with the Supreme Court of Connecticut, that if it appeared that the court rendering the judgment had jurisdiction, the record is conclusive evidence of the deb'. The case of Starbuck r. Murray, 5 Wend. Rep. 148, is to the same effect. In Shumway . Stillman, 6 Wend. Rep. 447, in an action on a judgment of a court of a sister State, it was held, that the record being only prima facie evidence of the defendant's appearance by attorney, that fact might be contested. SIT. only (o)(275), or on a mere interlocutory order of a Court of Law (p). But 1. Assumpan action may be maintained on the decree of a Colonial Court for payment of a balance due on a partnership account (q). We have already noticed the instances in which an action is sustainable by a party against his co-partner (r)(276). corpora Assumpsit cannot be supported against a corporation (277), because a cor- By and poration cannot contract by parol (s); except in the case of promissory against notes (1) and bills of exchange, where the power of drawing and accepting tions. them is recognized by statute (u), and other contracts sanctioned by particular legislative provisions (v) (278). But a corporation may be plaintiffs in this form of action; at least upon an executed consideration, as for use and occupation of buildings or land, or even tolls, where the tenant has held the premises under them, and paid rent (w). And the London Gas Company may sue in assumpsit for gas supplied, although there was no contract by deed under their seal (x). be a con Where there has been an express contract, the party injured may sustain an In general action of assumpsit, though the breach amount to a trespass (y); but unless there must there have been such contract, or the law will, under the circumstances, imply tract. a contract, the plaintiff must resort to another form of action (z). Therefore, assumpsit for use and occupation cannot be supported where the possession is adverse (279), and the relation of landlord and tenant has never subsisted (0) 3 B. & Ald. 52; 8 B. & C. 20; 2 M. & R. 165, S. C. (p) 2 Hen. Bla. 248; 4 Taunt. 705; 3 B. & Ald. 56. (q) 8 B. & C. 16; 2 M. & R. 153, S. C.; 1 Campb. 253. (r) Ante, 44. Burr. 1216. (v) 6 Vin. Ab. 317, pl. 49; 5 East, 239, 242; see 16 East, 6. (w) 2 Lev. 252; 1 Campb. 466; 4 Bing. 75, 287; when not, id. 283; Mayor of Staf ford v. Till, 1 Moore, 260; Mayor of Carmarthen v. Lewis, 6 Car. & P. 608; 4 Bar. (s) 1 Rol. R. 82; see 5 Taurt. 792; 4 & Cres. 962, 968; 7 D. & R. 376, 381, S.C. Bing. 77. (t) 3 & 4 Ann. c. 9. (u) 5 B. & Ald. 204; 3 B. & Ald. 1 ; 2 (x) 2 C. & P. 395. (y) 2 Wils. 321; 3 Wils. 354. (275) { Aliter, in Pennsylvania, Evans v. Tatem, 9 Serg. & Rawle, 252. See Dubois v. Dubois, 6 Cow. Rep. 494.} (276) { See also Atwater v. Fowler, 1 Hall's Rep. 181.} (277) But it has been decided in some late cases in this country, that assumpsit would lie against a corporation, even on an implied promise. Danforth v. Schoharie Turnp. Co., 12 Johns. Rep. 227. Bank of Columbia Patterson's Adm'r. in Sup. Court of U. S. 5 Hall's L. J. 489, cited 12 Johns. Rep. 231, S. C. 7 Cranch, 299. Hayden and another v. Middlesex Turnp. Corporation, 10 Mass. Rep. 397. Dunn v. Rector, &c. of St. Andrew's Church, 14 Johns. Rep. 118. Overseers of N. Whitehall v. Overseers of S. Whitehall, 3 Serg. & Rawle, 117. Ellis v. Merrimack Bridge, 2 Pick. Rep. 243. Poultney v. Wells, 1 Aiken's (Vermont) Rep. 180. Savings Bank v. Davis, 8 Conn. Rep. 202, and the cases there cited. } A special action of assumpsit will lie against a bank for refusing to transfer stock. The King v. Bank of England, 2 Doug. 524. Shipley and others. Mechanics' Bank, 10 Johns. Rep. 484. See also Gray v. Portland Bank, 3 Mass. Rep. 364. An insurance company may make a valid promissory note, which will be held good until the contrary be shown. Barker v. Mechanics' Fire Ins. Co., 3 Wend. R. 94. But a note by which J. F., as president of an insurance company, promises to pay a sum certain, is not the note of the company, but of the maker alone. ib. (278) An action of assumpsit will lie against a corporation upon simple contracts of its authorized agents, when acting within the scope of the legitimate purposes of such corporations. Mott v. Hicks, 1 Cowen, 513. (279) See 3 Serg. & Rawle, 501. Wharton v. Fitzgerald, 3 Dall. 503. Polt v. Lesher, Yeates, 576. Stockett v. Watkins' Adm., 2 Gilb. & Johns. Rep. 327. Featherstonhaugh v. Bradshaw, 1 Wend. Rep. 134. Nor can it be supported against a person who has entered under a contract to purchase, which he has refused to perform, but he should be sued for the mesne profits. Smith. Stewart, 7 Johns. Rep. 46. Nor to recover the value of sand taken from a sand-bar in another State, to which both parties claimed title, and sold by the defendant. Baker v. Howell, 6 Serg. & Rawle, 476. SIT. 1. ASSUMP- between the parties; but the plaintiff must declare in ejectment or trespass (a)(280). Nor is assumpsit the proper remedy in the case of a deceitful representation, not embodied in, or noticed on the face of, a written con[*122] tract between the parties; but the *remedy should be case for the fraud (b). But where the defendant in selling a horse refused to warrant it, and yet said that it was "sound, as far as he knew," it was held, that he was liable in assumpsit, on proof negativing the soundness, and showing that the defendant knew the horse was unsound, and that it was not necessary to declare in case for the deceitful representation (c). The cases in which the plaintiff may waive a tort or trespass and declare in assumpsit, have been already adverted to (d). It is not judicious to adopt this form of action where the plaintiff may declare in tort in cases where, by suing ex contractu, the right of set-off may attach (e). And if goods be obtained under a fraudulent contract, giving the purchaser a specified credit, although the vendor may disaffirm the contract, and maintain trover before the expiration of the credit, yet he cannot, during the prescribed period, maintain assumpsit for goods sold (f) (281). And where the debt is small, and it is important to avoid the expense and delay of executing a writ of inquiry, it is judicious to declare in debt. Declaration, &c. The Declaration in this action must, except in the instances of bills of exchange, promissory notes, and checks, disclose the consideration upon which the contract was founded, the contract itself, whether express or implied, and the breach thereof (g); and damages should be laid sufficient to cover the real amount; and Reg. Gen. H. T. 4 W. 4, prohibits more than one count upon the same transaction. The most general plea was non assumpsit, that the defendant did not undertake and promise as alleged by the plaintiff, and under which the defendant might formerly give in evidence most matters of defence. But now the Reg. Gen. H. T. 4 W. 4, wholly abolishes the plea of non assumpsit in some actions, and greatly narrows its utility in others, as will be fully shown in the chapter on pleas, where the rules with regard to the form and application of pleas in this action will be fully noticed. The judgment in favor of the plaintiff is, that he recover a specified sum, assessed by a jury, or on reference to the master, for his damages which he hath sustained by reason of the defendant's non-performance of his promises and undertakings; and for full costs of suit, to which the plaintiff is in all cases entitled in this action, though the damages recovered be under 40s., unless the judge certify to take away costs under the statute (h); or unless the plaintiff ought to have proceeded for the recovery of the debt in some inferior [*123] Court established by virtue of an act of parliament, which deprives a party suing elsewhere of the right to costs. In some cases the superior Courts will stay the proceedings where the debt sued for is under 40s., and the plaintiff may recover it in an inferior Court (i). (a) 1 T. R. 378, 386, 387; Lord Raym. (b) 4 Campb. 22, 144, 169; 12 East, 11. (d) Ante, 113, 114. (e) Ibid. (f) 9 B. & C. 59. (g) Bac. Ab. Assumpsit, F. (i) Tidd, 9th edit. 516. (280) Vide Cummings and wife v. Noyes, 10 Mass. Rep. 435, 436. (281) Vide Bailey and Bogert v. Freeman, 4 Johns. Rep. 283. See Edgerton v. Edgerton, 8 Conn. Rep. 6. II. DEBT. This action is so called because it is in legal consideration for the recovery II. DEBT. of a debl (282) eo nomine and in numero; and though damages are in general awarded for the detention of the debt, yet in most instances they are merely nominal, and are not, as in assumpsit and covenant, the principal object of the suit, and though this distinction may now be considered as merely technical, where the contract on which the action is founded is for the payment of money, yet in many instances we shall find it material to be attended to (k). Debt is, in some respects, a more extensive remedy for the recovery of IN GENEmoney than assumpsit or covenant; for assumpsit is not sustainable upon a RAL. specialty, and covenant does not lie upon a contract not under seal; whereas debt lies to recover money due upon legal liabilities (1); or upon simple contracts, express or implied (m), whether verbal or written; and upon contracts under seal (n); or of record (o)(283); and on statutes by a party grieved, or by a common informer; whenever the demand is for a sum certain, or is capable of being readily reduced to a certainty (p) (284). It may be supported on a contract to pay so much per load for wood, the quantity of which was not then ascertained; or on a quantum meruit (q) for work; or to pay a proportion of the costs of a suit expected to be incurred (r); or to recover the treble value of tithes not set out according to the statute (s). But it is not sustainable when the demand is rather for unliquidated damages than for [*124] money (1); unless the performance of the contract were secured by a penalty, in which case debt may be supported for the penalty, and the real demand is to be ascertained according to the provisions of the 8 & 9 W. 3, c. 11. Debt also lies in the detinet for goods, as upon a contract to deliver a quantity of malt; which action differs from that of detinue in respect of the property in any specific goods, not being necessarily vested in the plaintiff at the time the action is brought, which is essential in detinue (u). ON SIMPLE On simple contracts and legal liabilities (x) debt lies to recover money lent, paid, had and received, and due on an account stated (y); for interest due on con (282) For the ancient law respecting this action, vide 1 Reeve's Hist. E. L. 158, 159. 2 Reeve's Hist. E. L. 252, 262, 329, 333. 3 Reeve's Hist. E. L. 58, 65. 5 Pet. S. C. R. 150. (283 See Republica v. Lacaze et al., 2 Dall. 123. (284) U. States v. Colt, 1 Peters' Rep. 147. So, where the plaintiff's land has been taken by a turnpike company in order to make their road, and the damages have been assessed according to the provisions of the act, debt will lie for the sum assessed, if no other specific remedy were provided by the act. Bigelow v. Cambridge Turn. Co., 7 Mass. Rep. 202. Geducy v. Inhabitants of Tewksbury, 3 Mass. Rep. 309, 310. TRACTS. II. DEBT. the loan or forbearance of money (z); for work and labor (a); for fees (b) ; for goods sold (c); and for use and occupation (d) (285). It is sustainable for any debt or duty created by common law or custom (e), as on a bill of exchange (286), by the payee against the drawer, on the default of the acceptor, or by the drawer against the acceptor of a bill of exchange, expressed to be for value received (ƒ); and by first indorsee against first indorser, who was also the drawer of a bill payable to his own order (g) (287); and on a promissory note by the payee against the maker, when shown to have been drawn for value received (h); but not by or against any other collateral party (i); and for tolls, port duties, and copyhold fines (k); and for quit rent (1). And it lies on an award to pay money (288), but not if it were to perform any other act, unless there were an arbitration bond, in which case the action must be brought thereon (m). It lies also on by-laws (n), for fines and amerciaments (o) (289), on English judgments not of record (p) (290), as well as on [*125] such as are of record, on an *Irish judgment (q), and on foreign judg ments (r) (291), and upon the decree of a Colonial Court for payment of a balance due on a partnership account (s) (292). Debt clearly lies against a corporation for the recovery of a debt in those cases in which assumpsit may be maintained against them (t), and in all those instances in which they contract by deed to pay money. And even assuming that a corporation cannot in (d) 5 Taunt. 25; 6 T. R. 62; 6 East, (e) Com. Dig. Debt, A. 9; Hob. 206. (h) Creswell . Crisp, 2 Dowl. 635; Ly- (i) 1 Taunt. 540; 2 B. & P. 78; Chitty Vide 3 Reeve's Hist. E. L. 64. (285) { Davis v. Shoemaker, ! Rawle, 135.} (286) Vide I Cranch, Appendix, 462, 465. (287) It is said that, in Maryland, such an action cannot be sustained. Lindo v. Gardner, I Cranch, 343. Since the statute making promissory notes negotiable, the legal operation and effect of the transfer is, that the money due upon the note to the original payee is due from the maker to the assignee or holder, and that in judgment of law there is privity of contract between the maker and indorsee or holder by the terms of the note and the operation of the statute. Accordingly, an action of debt on a promissory note may be maintained by an indorsee against the maker. Wilmarth v. Crawford, 10 Wend. R. 340. (288) Stanley v. Chappel, 8 Cowen R. 235. And debt on an award of money will lie, without regard to the penalty of the bond. Ex parte Wallis, 7 Cowen, 522. (289) But debt will not lie on a judgment for damages obtained under the act of the 6th of April, 1802, (Purd. Dig. 621,) to enable purchasers at sheriffs' and coroners' sales to obtain possession." The remedy prescribed by the act can alone be pursued. Moyer v. Kirby, 14 Serg. & Rawle, 162. (290) Pease v. Howard, 14 J. R. 479. (291) Hubbell v. Cowdrey, 5 J. R. 132. Duryee, 7 Cranch, 481. Bennet v. Moody, 2 Hall's N. Y. R. 471. (292) Debt lies on the decree of a court of chancery, in another State, for the payment, by the defendant, of money only, without any acts to be done by the plaintiff. Post and La Rue v. Neafie, 3 Caines' Rep. 22. Evans v. Tatem, 9 Serg. & Rawle, 252. } |