I. ther assumpsit nor debt can be sustained on the decree of the Court of ASSUMPSIT. Chancery for a specific sum of money, founded on equitable considerations only (o) (1), or on a mere interlocutory order of a Court of Law (p). But an 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) (2). By and against corporations. Assumpsit cannot be supported againat a corporation (3), because a cor (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. (9) 8 B. & C. 16; 2 M. & R. 153, S. C.; 1 Campb. 253. (r) Ante, 39. 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'Connell, 3 Wheat. 234. See Jones v. Hoar, 2 Rand. 203. As to the propriety of the plea of Nil Debet see farther, Hall v. Williams, 6 Pick. 247; Thurber v. Blackbourne, 1 N. Hamp. 242; Curtis v. Gibbs, Pen. 405; Starbuck v. Murray, 5 Wend. 148; Clarke v. Day, 2 Leigh. 172; Spencer v. Blockway, 1 Ham. 260; Goodrich v. Jenkins, 6 Ham. 42; Gullich v. Loder, 1 Green. 68; St. Albans v. Bush, 4 Vermt. 58; Chipps v. Yaucey, 1 Breese, 2; Kimmell v. Shultz, 1 Breese, 128. The decision in Mills. Duryee has been acquiesced in by the courts of New York, (Andrews v. Montgomery, 19 Johns. 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. 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 v. Flagg, 2 Pick. 448. In the case of Aldrich v. Kinney, 4 Conn. 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, 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 debt. The case of Starbuck v. Murray, 5 Wend. 148, is to the same effect. In Shumway v. Stillman, 6 Wend. 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. So held in Gleason v. Dodd, 4 Metcalf, 333; Watson v. New England Bank, 4 Metcalf, 343. See M'Elmoyle v. Cohen, 13 Peters, 312; Wilson v. Bank of Mt. Pleasant, 6 Leigh. 570; Hale v. Williams, 1 Fairf. 278; Whitter v. Wendell, 7 N. Hamp. 257; Adams . Rowe, 2 Fairf. 94, 95; Harley v. Root, 11 Pick. 390; Stegal v. Wyche, 5 Yerger, 83; Chitty Cont. (5th Am. ed.) 790 n. 1. (1) See Hugh . Higgs, 8 Wheat. 697; Storer v. Hinkley, 3 Caines, 37. Alifer, in Pennsylvania, Evans v. Tatem, 9 Serg. & Rawle, 252. See Dubois v. Dubois, 6 Cow. 494. Post, 110, note. (2) See also Atwater v. Fowler, 1 Hall, 181. (3) 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. 227; Bank of Columbia v. Patterson in Sup. Court of U. S. 5 Hall's L. J. 489, cited 12 Johns. 231, S. C.; 7 Cranch, 299; Hayden v. Middlesex Turnp. Corporation, 10 Mass. 397; Dunn v. Rector, &c. of St. Andrew's Church, 14 Johns. 118; Overseers of N. Whitehall. Overseers of S. Whitehall, 3 Serg. & Rawle, 117; Ellis v. Merrimac Bridge, 2 Pick. 243. Poulteney v. Wells, 1 Aiken's (Vermont) 180. Savings Bank v. Davis, 8 Conn. 202, and the cases there cited. Church v. Mulfud, 3 Halst. 182; Waring 7. Catawba Co., 2 Bay, 109; Chesapeake &c. Canal Co. v Knapp, 9 Peters, 541. In Connecticut it has been decided that no action at law will lie against a county. Ward v. The County of Hartford, 12 Conn. 404. 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 v. Machanic's Bank, 10 Johns. 484; Kortright v. Buffalo, Com. Bk. 20 Wendell, 91, S. C. 22 ib. 348. See also Gray v. Portland Bank, 3 Mass. 364. An insurance company may make a valid promissory note, which will be held good until the contrary be shown. Barker v. Machanics' Fire Ins. Co., 3 Wend. 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. I. ASSUMPSIT. poration cannot contract by parol (8); except in the case of promissory notes (t) and bills of exchange, where the power of drawing and accepting them is recognized by statute (u), and other contracts sanctioned by particular legislative provisions (v) (1). 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 [*107] 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) (2). there must Where there has been an express contract, the party injured may sus- In general tain an action of assumpsit, though the breach amount to a trespass (y); be a conbut unless there have been such contract, or the law will, under the cir- tract. cumstances, imply a contract, the plaintiff must resort to another form of action (2) (3). Therefore, assumpsit for use and occupation cannot be supported where the possession is adverse (4) and the relation of landlord and tenant has never subsisted between the parties; but the plaintiff must declare in ejectment or trespass (a) (5). Nor is assumpsit the proper remedy in the case of a deceitful representation, not embodied in, or noticed on the face of, a written contract 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 represen (s) 1 Rol. R. 82; see 5 Taunt. 792; 4 Carmarthen v. Lewis, 6 Car. & P. 608; 4 (t) 3 & 4 Ann. c. 9. (u) 5 B. & Ald. 204; 3 B. & Ald. 1; 2 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 Bingh. 75, 287; when not, Id. 283; Mayor of Stafford v. Till, 1 Moore, 260; Mayor of (x) 2 C. & P. 385. (y) 2 Wils. 321; 3 Wils. 354. (a) 1 T. R. 378, 386, 387; Lord Raym. (b) 4 Campb. 22, 144, 169; 12 East, 11. (1) 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. (2) So a corporation may maintain assumpsit against a person, who has subscribed for stock in the corporation, for the sum so subscribed. Stokes v. Lebanon and Sparta Turnpike Co. 6 Humphrey, 241. See also Gayle v. Cahawba Railroad Co., 8 Alabama, 586; Vestry of Christ's Church v. Simons, 2 Richardson, 368. (3) Where A. went upon the land of B. with his knowledge and assent, and cut and carried away the grass there growing, it was held, that A. was not a trespasser, and that B. might maintain assumpsit to recover the value of the grass. Goldthwaite v. Kempton, 13 N. Hamp. 449. (4) Ryan v. Marsh, 2 Nott & M. 156; Wiggin v. Wiggin, 6 N. Hamp. 298; Rickey v. Huide, 6 Ham. 371. See 3 Serg. & Rawle, 501; Wharton v. Fitzgerald, 3 Dall. 503; Polt v. Lesher, 1 Yeates, 576; Stocket v. Watkins, 2 Gill & Johns. 327; Featherstonhaugh v. Bradshaw, 1 Wend. 134; ante, 106 in note. 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 mesne profits. Smith v. Stewart, 7 Johns. 46; Vandarheavel v. Storrs, 3 Conn. 203; Bell v. Ellis, 1 Stew. & Port. 204; Little v. Pearson, 7 Pick. 301; Jones v. Tifton, 2 Dana, 295; Hough v. Birge, 11 Vermont, 190; Doe v. Cochran, 1 Scammon, 209. 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. (5) Vide Cummings v. Noyes, 10 Mass. 435, 436; Brewer v. Craig, 3 Harr. 214; Curtis. Treat, 8 Shepley, 525; Lloyd v. Hough, 1 Howard, (U. S.) 153; De Young v. Buchannan, 10 Gill & Johns. 149. I. tation (c) (1). The cases in which the plaintiff may waive a tort or trespass ASSUMPSIT. and declare in assumpsit, have been already adverted to (d) (2). 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 (ƒ) (3). 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) (4) 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[*108] 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 defense. But now the Reg. Gen. H. T. 4. W. 4, wholy 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 (1) Parlin v. Bundy, 18 Vermont, 582. (f) 9 B. & C. 59. (g) Bac. Ab. Assumpsit, F. (2) Jones v. Hoar, 5 Pick. 285; Willett v. Willett, 3 Watts, 277; Sanders v. Hamilton, 3 Dana, 552; Webster v. Drinkwater, 6 Greenl. 323; Gilmore . Wilbur, 12 Pick. 120; Putnam v. Wise, 1 Hill. 234; Guthrie v. Wickliffe, 1 Marsh. 83; Miller v. Miller, 7 Pick. 133; Centre Turnp. Co. v. Smith, 12 Vermont, 212; Wier v. Church, N. Chip. 95; Morrison v. Rogers, 2 Scammon, 317. Where there was a mistake in delivering goods under a contract, and the vendee fraudulently returned to the vendor other goods, the vendor was permitted to waive the tort and recover the price at which his own goods were sold by the fraudulent vendee in assumpsit for money had and received. Gray v. Griffiths, 10 Watts, 431. See O'Conley v. Natchez, 1 Smedes & Marsh. 31; Berly v. Taylor, 5 Hill, 577; Sturtevant v. Waterbury, 2 Hall, 449. Goods were sold to be paid for on delivery, the agent of the owner delivered them without receiving payment, it was held that the owner could sustain either trover or assumpsit. Kingman v. Hotaling, 25 Wendell, 423; Centre Turnp. Co. v. Smith, 12 Vermont, 212. (3) Goods were sold to be paid for by a note or bill at a future day; the bill or note is not given; the vendor can sue immediately for the breach of the special agreement, but not as the general count for goods sold and delivered. Hanna Mills, 21 Wendell, 90; Johnson v. Smith, Auth. N. P. 60; Yale v. Coddington, 21 Wendell, 175. A person lending money on time, upon security of a forged name, is entitled to recover back the money lent immediately. Man. and Mech. Bank v. Gore, 15 Mass. 75; Boardman v. Gore, 15 Mass. 331. Vide Bailey and Bogert v. Freeman, 4 Johns. 283. See Edgerton v. Edgerton, 8 Conn. 6. (4) The consideration must be truly stated, and proved as laid. Moore v. Ross, 7 N. Hamp. 528; Shelton v. Bruce, 9 Yerger, 24. I. of the debt in some inferior Court established by virtue of an act of parliament, which deprives a party suing elsewhere of the right to costs. In ASSUMPSIT. 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). II. DEBT. The action is so called because it is in legal consideration for the recovery of a debt (1) 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). II. DEBT. IN Debt is, in some respects, a more extensive remedy for the recovery of money than assumpsit or covenant; for assumpsit is not sustainable GENERAL. upon a specialty, and covenant does not lie upon a contract not under seal; whereas debt lies to recover money due upon legal liabilities (7) ; or upon simple contracts, express or implied (m), whether verbal or written; and upon contracts under seal (n); or of record (o) (2); and on statutes by a party grieved, or by common informer; whenever the demand is for a sum certain, or is capable of being readily reduced to a certainty (p) (3). 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 [*109 ] (i) Tidd. 9th ed. 516. (A) 1 H. Bl. 550; Bul. N. P. 167; Cowp. 588. (1) 1 Hob. 206; Com. Dig. Debt, A. 1. Dig. Debt, A. 9. (n) Id. Ibid. (0) Id. Ibid. (p) Bul. N. P. 167; 3 Lev. 429; Sir T. Jones, 104; Ld. Raym. 814; 2 Stra. 1089; Dougl. 6; 2 T. R. 29. (1) 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. 150. The action of debt is founded upon the contract, and assumpsit upon the promise. This is the principal distinction between the actions. Simonton v. Barrell, 21 Wendell, 362. (2) See Republica v. Lacaze, 2 Dall. 123. A joint action for debt lies against the persons, who have bound themselves, by the same writing, to pay a sum of money, the one with and the other without seal. Oldham v. Hunt, 4 Humph. 332. This is the proper form of action on a sealed instrument, where an unliquidated demand, which can readily be reduced to a certainty, is sought to be recovered. Wetumpka Rail Road Co. v. Hill, 7 Alabama, 772. (3) U. States v. Colt, 1 Peters, 147. See Long v. Long, 1 Hill, 597; Sims v. Alderson, 8 Leigh, 479; Home v. Semple, 3 McLean, 150; Mayor &c. of N. York v. Butler, 1 Barbour, 325. As a general rule debt lies for a sum certain, yet it is the proper remedy for a penalty imposed by a statute, though the amount is uncertain, and is to be fixed by the court between five and fifty dollars. Rockwell v. Ohio, 11 Ohio, 130. 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. 202; Gedney v. Inhabitants of Tewkesbury, 3 Mass. 309, 310; Blanchard v. M. and L. Turnp. Co., 1 Dana, 86. Debt will not lie on a note under seal for the payment of a specified sum “in United States bank notes or its branches," it not being for the payment of money. Wilson v. II. DEBT. meruit (q) (1) for work; or to pay a proportion of the costs of a suit expected to be incurred (r)or to rocover 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 money (t); 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 CONTRACTS. lent, paid, had and received, and due on account stated (y); for interest due on 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) (2). It is sustainable for any debt or duty created by common law or custom (e), as on a bill of exchange (3), 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 (f); and by first indorsee against first indorser, who was also the drawer of a bill payable to his own order (g) (4): 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 (1) It has been doubted whether debt lies upon a quantum meruit; and of late it has been usual to omit the quantum meruit count in debt. 19. (r) 3 Lev. 429. (s) Ld. Raym. 682; 1 Roll. Ab. 598, pl. (t) Ante, 108, n. (p); Ld. Raym. 1040; (u) Dyer, 24 b; Com. Dig. Debt, A. 5; (y) Com. Dig. Debt, A.; 1 Roll. Ab. (z) 5 T. R. 553. (a) Com. Dig. Debt, B. (b) Bac. Ab. Debt, A.; 1 Roll. Ab. 598; (d) 5 Taunt. 25; 6 T. R. 62; 6 East, 348. (h) Creswell v. Crisp, 2 Dowl. 635; Lyons v. Cohen, 3 Dowl. 243; Priddy v. Henbrey, 1 Barn. & Cres. 674; 3 Dowl. & Ryl. 165; and post, 2 vol. 6th ed. 251, 252. Hickson, 1 Blackf. 231. See also to the same effect, Osborne v. Fulton, 1 Blackf. 234; Harpey v. Levy, 1 Blackf. 294; Cassady v. Laughlin, 3 Blackf. 134. But it is inti mated in Nelson v. Ford, 5 Ohio, 473, that debt or covenant will lie on a sealed bill to pay a certain sum in trade, generally, or in houses, or land, or corn. See Young v. Hawkins, 4 Yerger, 171; Gift . Hall, 1 Humph. 480; Taylor v. Meek, 4 Blackf. 388; Gregory v. Bewly, 5 Pike, 318. (1) An action of debt will lie on a quantum meruit. Smith v. Lowell, 8 Pick. 178; Van Deusen v. Blum, 18 Pick. 229, 231; Norris v. School Dist. No. 1, in Windsor, 3 Fairf. 293; Thompson v. French, 10 Yerger, 452; Mahaffey v. Petty. 1 Kelly, 261. (2) Davis . Shoemaker, 1 Rawle, 135; McKean v. Whitney, 3 Denio, 452. Vide 3 Reeve's Hist. El. 64. (3) Vide 1 Cranch, Appendix, 462, 465; Hollingsworth v. Milton, 8 Leigh, 50; Sharpe v. Fowlkes, 7 Humph. 512. (4) It is said that, in Maryland, such an action cannot be sustained. Lindo v. Gardner, 1 Cranch, 343. See also to the same effect, Whiting v. Ring, Minor, 122; Olive v. Rapier, Cooke, 11; Smith v. Segar, 3 Hen. and Mumf. 394; Stovell v. Woodson, 2 Mumf. 302; Frierson v. Reeves, 7 Humph. 357. 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. 340. See Bentley v. Dickson, 1 Pike, 165; Phillips v. Runnels, 1 Morris, 391. Debt lies by the bearer against the maker of a promissory note payable to bearer, Carroll v. Meeks, 3 Porter, 226. Contra. Howell v. Hallett, Minor, 102. |