102 I. ASSUMPSIT. When the peculiar remedy. Assumpsit is also the proper remedy for a breach of a promise to marry; The action of assumpsit is in general the only remedy against an executor or administrator, for the breach by the testator of a contract not under seal, which was made with him (k); for (unless in the Court of Exchequer, in which wager of law is not allowed) (1), debt is not sustainable against an executor, as such, upon the simple contract of his testator; although it lies against an executor on a simple contract made with him in that character (m). And in general, assumpsit is the only remedy for the recovery of an instalment, (4) due on a simple contract, in respect of an [103] entire sum payable by instalments, "the whole of which have not accrued due; as debt is not sustainable in such case (n). Where a simple contract creates a collateral liability, as for the payment of the debt of a third person, debt not being sustainable, assumpsit is the only form of action (0). (b) 4 East, 147; 3 B. & P. 582. (c) Post, vol. ii.; 2 Bla. Com. 451; 3 id. (d) 1 Marsh. 115; 1 Taunt. 572; post, vol. ii. (g) 11 Geo. 2, c. 19, s. 15. (h) 1 Swanst. 337; 2 Saund. 282, e. n. 2; 8 Ves. 311; 2 Ves. & B. 334; 1 P. W. 117; 2 Bro. C. C. 659. (i) 5 Taunt. 431; 1 Marsh. 115. (n) 1 Hen. Bla. 547; Cro. Jac. 504; 2 Saund. 303, n. 6, 337, 350, 374; Fitzg. 302; Com. Dig. Action, F.; 3 Co. 22 a.; post. (0) Hardr. 486; Com. Dig. Debt, B.; 2 Lord Raym. 1040. (1) So for not delivering goods where payment was to be made in goods. Marshall v. McPher8 Gill & Johns. 333. son, (2) Evertson v. Miles, 6 Johns. 138; Hullock v. Powell, 2 Caines, 216; Timrod v. Shoolbred, 1 Bay, 324; Kimball v. Cunningham, 4 Mass. 505; Ryers v. Bostwick, 2 Con. Ct. 75; Fowler v. Williams, 2 Brevard, 304. Assumpsit does not lie against a sheriff, or other officer, for neglect of official duty. Walbridge v. Griswold, 1 D. Chip. 162; Bailey v. Butterfield, 14 Maine, (2 Shepley,) 112. Nor against a collector of taxes, for neglect to levy, collect, and pay Charlestown v. Stacy, 10 Vermont, 562. over taxes. (3) The 14th and 15th secs. of this statute, are in force in Penn. Rob. Dig. 236, 3 Bin. 626. (4) Vide Tucker v. Randall, 2 Mass. 283. Assumpsit lies on a promissory note by which the interest is payable annually, although the principal is not yet payable. Greenleaf v. Kellogg, 2 Mass. 568, 284; Cooley v. Rose, 3 Mass. 221. t. ASSUMPBIT. several se For the same reason, assumpsit is the only remedy at the suit of the payee or indorsee of a bill of exchange against the acceptor, or of the indorsee of a promissory note against the maker (p). And on an award to perform any act, except to pay money, assumpsit is the only remedy, unless the submission were by bond (q). Formerly it was thought, that in an action of debt on simple contract, the precise sum stated to be due in the declaration must be recovered, or that the plaintiff would be nonsuited (r); and therefore at that time, it was usual, when the amount of the debt was uncertain, to declare in assumpsit; but as this notion no longer prevails, and the plaintiff will recover, if he prove any sum to be due to him, though less than that stated in the declaration, it is no longer material in this respect whether the plaintiff declare in assumpsit or debt (s). When a party has different securities of different descriptions for the of assump same debt or demand, and from the same person, he must found his ac- sit where tion on that security which is in law of the higher nature and efficacy. there are The law has prescribed different forms of action, on different securities. curities, Thus assumpsit cannot in general be supported when there has been an &c. express contract under seal (1) or of record (2), which relates to the same subject matter, and is still in force; but the party must proceed in debt or covenant where the contract is under seal (3), or in debt or scire facias if it be of record, even though the debtor, after such contract were made, expressly promised (4) to perform it (t). And if there be a charter-party under seal between the master and freighter, assumpsit will not lie by the owners for freight, which the defendant by the deed covenanted with the master to pay (u). But if the owners of a ship be not charged directly on the contract of charter-party, but upon their general liability, they may be sued in case for negligence in conveying the goods, notwithstanding the charter-party be under seal, entered into by the master, and whereby he covenanted to convey the cargo: the action not being inconsistent with the provisions of the deed, and the master, contracting as such, *not as part owner (x) (5). If the deed be only executed by the [*104] Bar. & Cres. 968; 7 D. & R. 381, S. C.; 10 (u) 1 M. & Sel. 573; 3 Campb. 549, n. a. (x) 6 Moore, 415; 3 B. & B. 171, S. C. (1) Vide Young v. Preston, 4 Cranch. 239; McNaughten v. Partridge, 11 Ham. 223; Codman . Jenkins, 14 Mass. 93; Fletcher v. Piatt, 7 Blackf. 522; Brown v. Gauss, 10 Missouri, 265; Hinkley v. Fowler, 15 Maine, (3 Shepley.) 285. It does not lie on a sealed policy of insurance. Gazzam v. Ohio Ins. Co., Wright, 214. In some cases where a party has covenanted to do an act, and failed in the performance, the covenantee has been allowed to recover back the consideration paid, in assumpsit. Weaver v. Bentley, 1 Caines, 47; D'Utricht v. Melchor, 1 Dall. 428; Howes v. Barker, 3 Johns. 509. (2) Andrews v. Montgomery, 19 Johns. 162. (3) Vide Richards v. Killman, 10 Mass. 243, 247. (4) Landis v. Urie, 10 Serg. & Rawle, 821, 14 Mass. 99; Miller v. Watson, 5 Cow. 195; Gillion v. Stewart, 7 Watts, 116; Hawkes v. Young, 6 N. Hamp. 300; Anderson v. Solomon, 2 Cep. Ct. 329; Davis v. Gibson, Cam. & N. 102; Somerville v. Stephenson, 3 Stern. 271; Richards v. Rillam, 10 Mass. 239; Bliss v. Negus, 3 Mass. 46. But it has been held that where there is a covenant to pay money, and part has been paid, assumpsit will lie on a promise to pay the balance. Danforth v. Schoharie Turnp. Co., 12 Johns. 277; Stump v. Estill, Peck. 175. (5) Assumpsit lies against a company for goods furnished, though its agents had contract I. plaintiff and not by the defendant, the action must be in assumpsit (y) (1); ASSUMPSIT. and if there be an agreement by deed to let a house, by words not amounting to an actual demise, the party may maintain assumpsit for use and occupation (z). So assumpsit lies for the use and occupation of a watercourse (a). Where on the separation of a husband and wife, he covenanted by deed with a trustee to pay an allowance for her separate maintenance, but made default, and the trustee provided the wife with necessaries, it was decided that he might support assumpsit on the common-law obligation (b). So if the contract under seal be invalid (2), and there be any evidence upon which an implied contract can be raised, assumpsit may in some cases be supported, as where an annuity deed has been set aside, or objected to for some defect (3) in the memorial, &c. (c): and the taking a security by deed, on usurious terms, for money previously lent and not affected by usury, would not bar an action of assumpsit for money lent (d). And where a feme covert, without authority from her husband, contracted with a servant by deed, the service having been performed, it was decided, that the servant might maintain assumpsit against the husband (e). If in respect of a new consideration, there has been a new simple contract to pay a debt, or perform a contract under seal, assumpsit may be supported (f) (4); as on a promise to an assignee of a bond, to pay him in consideration of forbearance (g) (5); or on a promise by an heir, having assets by descent, to pay the debt of his ancestors for the same consideration (h); or on a promise to the husband to pay the arrears of the rent-charge due to ed under their own seals, to pay the plaintiff, if he would furnish the goods to the company. Craw v. Bangor House, 3 Fairf. 354. (1) Hatch v. Crawford, 2 Porter, 54. Where land is conveyed by deed poll, and the grantee enters under the deed, certain duties being reserved to be performed, as no action lies against the grantee on the deed, the grantor may maintain assumpsit for the non-performance of the duties reserved. Goodwin v. Gilbert, 9 Mass. 510. Fletcher v. M'Farlane, 12 Mass. 43; Guild v. Leonard, 18 Pick. 511. See Nugent v. Riley, 1 Metcalf, 117, 121; Newell v. Hill, 2 ib. 180, 181; Carter v. Carter, 14 Pick. 424, 428; Rawson v. Copeland, 2 Sandford, Ch. 251. Assumpsit lies to recover the consideration money for land sold. Shephard v. Little, 14 Johns. 210; Velie v. Myers, 14 Johns. 162; Bowen v. Bell, 20 Johns. 388, 205; Wilkinson v. Scott, 17 Mass. 249; Butler v. Lee, 11 Alabama, 885. (2) Or be rescinded. Hill v. Green, 4 Pick. 114; See Watchman v. Crook, 5 Gill & Johns. 240; Hitchcock v. Lukens, 8 Porter, 333. (3) Vide Shore v. Webb, 1 Term, 732; Beauchamp v. Borrett, Peake's Cas. 109; Richards v. Borrett, 3 Esp. 102. (4) Codman v. Jenkins, 14 Mass. 95; Hawkes v. Young, 6 N. Hamp. 300; Andrews v. Montgomery, 19 Johns, 162; Miller v. Watson, 7 Cow. 39. Where the terms of a sealed instrument have been varied by parol, assumpsit lies in respect to the terms thus varied. Mill Dam Foundry v. Hovey, 21 Pick. 417. A promise to pay a specialty debt, which has been discharged by a certificate of Bankruptcy, does not revive the original debt as a debt by specialty. The original debt is merely a consideration, which renders the new promise available. Case of Field's Estate, 2 Rawle, 851. Where a tenant has held by lease with the usual covenants, and the lease expires, and the tenant still continues to hold the land with the consent and permission of the landlord, he shall hold subject to all the covenants contained in the expired lease, for the breach of any of which he may be sued in assumpsit; for the law raises the implied assumpsit of his continuing to hold on the same terms as he did by the lease.. 1 Esp. Dig. 7. (5) 10 Serg. & Rawle, 321. In Dubois v. Doubleday, 9 Wend. 317, it was held, that assumpsit would not lie by the assignee of a bond, except on an express promise, although his right to the money has been recognized, a partial payment made to him, and a negotiation had for the payment of the balance. I. the wife in her life-time, although the rent was secured by deed (i); or by the debtor himself, in respect of any new consideration (k). And though ASSUMPSIT. it has been decided that assumpsit cannot be supported against a party, on his undertaking to pay the debt and costs recovered against himself, in consideration that the plaintiff would stay execution (1) it is clear that such action might be supported on a similar undertaking made by a third person (m) (1.) So between partners, who have by deed covenanted to account with each other, and to pay over what shall appear to be due: if they state an account, and one expressly promise to pay the balance, assumpsit may be supported, (2) notwithstanding the deed (n). And where [ *105 ] a contract under seal has afterwards been varied in the terms of it by a distinct simple contract, made upon a sufficient consideration, such substituted or new agreement must be the subject of an action of assumpsit, and not of an action of covenant (o) (3) ; and where several things unconnected with a deed, are, with other stipulations in a deed, afterwards made the subject of a parol contract, assumpsit may be sustained for the breach of it (p); and when freight is recoverable pro rata itineris, assumpsit is the proper remedy, and not covenant on the charter-party (q). It is also a rule, that when a bond or other security, under seal or of record, has been accepted in satisfaction of a simple contract, the latter is merged in such higher security, and assumpsit is not sustainable (r); unless such new security be void on account of usury (s) or under the annuity act, &c. in which cases the party may proceed on the original simple contract if valid (t) (4). So if an infant give a bond (5) in a penalty for necessaries, the bond being inoperative, the creditor may proceed in (i) 1 Leon. 293; 2 M. & Sel. 309. (k) Cro. Car. 343; Cro. Eliz. 67; 12 Mod. 511; 1 Vin. Ab. 272; 1 Rol. Ab. 8, pl. 6; Bac. Ab. Assumpsit, A. (1) Cowp. 128, 129, see Hutten, 77; Cro. Car. 8. Semble that a party discharged out of custody on a ca. su. on his promise to pay at a future period, is liable in assumpsit upon such new agreement, 4 Burr. 2483. (m) Cowp. 129; Hardr. 71; 1 Lev. 188. (n) 2 T. R. 483, 478. When partners may sue each other, see ante, 39. (0) 1 East, 630; 3 T. R. 596; 4 Taunt. 748. (p) 1 M. & Sel. 575; 2 T. R, 479. (q) 10 East, 295; 1 New. Rep. 240. (1) Duncan v. Kirkpatrick, 13 S. & R. 293. (2) In an action on an arbitration bond, on the back of which the parties had indorsed an agreement under seal, enlarging the time for making the award, and it was made within such time. The court said that by the decision in Brown v. Goodman, (3 T. R. 592.) an action would not lie on the bond; the party has another remedy upon the submission implied in the agreement to enlarge the time. Freeman v. Adams, 9 Johns. 110. They say, that if a contract be subsequently changed, you must declare otherwise than on the contract itself; and they distinguish between cases where actions are brought upon such agreements, and those cases where the enlargement of time is presented by way of defense, as in Fleming v. Gilbert, 3 Johns, 528. (3) Lattimore v. Hansen, 14 Johns. 330; Munroe v. Perkins, 9 Pick. 298; Hill v. Green, 4 Pick. 114; Sibley v. Browne, 4 Pick. 139; Baird v. Blagrove, 1 Wash. 170. Vide Casey and Lawrence v. Brush, 2 Caines, 296; See also Baits v. Peters, 9 Wheat. 556. A parol enlargement of the time set in a sealed instrument for the performance of covenants is good; but where there is such enlargement of a condition precedent, the plaintiff loses his remedy upon the covenant itself, and must seek it upon the agreement enlarging the time of performance. Langworthy v. Smith, 2 Wend. 587. 6 Hals. 327. Mill Dam Foundry v. Hovey, 21 Pick. 418. Luciani v. The American Fire Ins. Company, 2 Whart. 167. And where a party to a special contract under seal is prevented by the other party from fully performing it, he may recover for what he has done in an action of assumpsit for his labor. Selby v. Hutchinson, 4 Gilman, 319. (4) Or promissory note, M'Crillis v. How, 3 New Hampshire, 348. Hammond v. Hopping, 13 Wend. 505. But where a note, given at the time when the liability of the defendant to the plaintiff occurs, is usurious, there can be no recovery in the same action on the money counts. Rice v. Welling, 5 Wend. 595. (5) As to promise by the debtor after usurious securities have been destroyed, to repay principal and interest, vide Barnes v. Hedley, 2 Taunt. 184. 1. ASSUMPSIT. For rent, &c. assumpsit (u) (1); and if after a secret act of bankruptcy, the bankrupt gives a bond in satisfaction of a simple contract debt, it will not so far extinguish the simple contract as to preclude the creditor from petitioning thereon for a commission (x). And the acceptance by a landlord of a bond for rent is no extinguishment of the rent, because the rent, issuing out of the realty, is a debt of as high a nature as a specialty claim (y). But a judgment obtained on a bond would extinguish the demand on the bond (). The taking a collateral security of an higher nature, whether from the principal or a surety, does not preclude the creditor from suing the original debtor in assumpsit on the first contract (a); though judgment may have been obtained upon such collateral security (b) (2). It was also a branch of this rule, that assumpsit could not be supported for rent, &c., issuing out of real property, though not reserved by deed, unless an express promise to pay could be proved (3): the demand, in the technical phrase, savoring of the realty, and being recoverable by higher remedies, as by debt or distress (c). The statute 11 Geo. 2, c. 19 (4,) [*106] was passed to remedy the common law in *this respect: since which, rent due on demise not under seal may be recovered by action of assumpsit as well as debt (d). And indeed, the notion that assumpsit does not lie for a duty, merely because the plaintiff claims an inheritance, in respect whereof the duty is payable, appears no longer to exist (e) (5). And if a party hold over, after the expiration of a demise by deed, he may be sued in assumpsit for use and occupation, to recover rent accruing due after the end of the term (ƒ) (6) (7). A corporation aggregate may maintain as (u) Bul. N. P. 182; Co. Lit. 172; Cro. Eliz. 920. (x) Bul. N. P. 182; Stra. 1042; 1 Hen. Bla. 462. (3) Buller's N. P. 182 a. cites 3 Danv. Abr. 507, A. 1. That rent, whether due on a lease or a parol demise, is of equal degree with a specialty, at least in the administration of assets, see Com. Dig, Administration, C. 2; Toller, 278. (z) Bul. N. P. 182 a; 6 Co. 44. (1) Vide 1 Campb. 553, n. See the doctrine stated, Roof v. Stafford, 7 Cow. 179, and the cases there cited. (2) Willoughby v. Speal, 4 Bibb. 397; Hills v. Elliott, 12 Mass. 26; Snow v. Thomaston Bank, 19 Maine, (1 Appleton,) 269. Vide Norris v. Aylett, 3 Campb. A mortgage of lands as security for a simple contract debt, though it contain a stipulation against personal liability on the mortgage, does not operate as payment of the debt; nor discharge the mortgagor from personal liability for it. ley v. Wilson, 7 Cowen, 662. See also, Hawley v. Foote, 19 Wend. 516, Ains (3) Vide Smith v. Stewart, 6 Johns. 48. Marshall v. M'Pherson, 8 Gill & Johns. 338. (4) The xiv. and xv. sections of this statute are in force in Pennsylvania, Roberts' Dig. 236. 3 Binn. 626. (5) Vide Eppe v. Cole, 4 Hen. & Mun. 161. Hayes v. Acre, Cam. & Norw. 19. Smith v. Sheriff of Charleston, 1 Bay, 444. See also Cummings v. Noyes, 10 Mass. 433, where, after reversal of a judgment in favor of the demandant, who had entered into possession, it was held, that the tenant might maintain assumpsit for the mesne profits. Where there is an express agreement to pay rent, assumpsit will lie to recover it without proving occupancy of the premises leased. Stier v. Surget, 10 Smedes & Marsh. 154. But assumpsit for use and occupation will not lie where the defendant has neither occupied, nor held the premises during the time for which the recovery is sought. Beach v. Gray, 2 Denio, 84. Assumpsit lies to recover back money paid under a judgment subsequently reversed. Sturges v. Allen, 10 Wendell, 354. (6) So indebitatus assumpsit will lie to recover the money agreed to be paid for owelty on a parol partition of lands; but there must be an averment of circumstances to take the contract out of the statute of frauds. Walter v. Walter, 1 Whart. 292. (7) Assumpsit will not lie for use and occupation, where the defendant's possession |