sumpsit for the use and occupation of buildings, or land, or tolls, though

1.

they did not grant the tolls to the occupier by any instrument under their ASSUMPSIT. common seal (g).

Though a statute may in some respects be considered as a specialty (h), On a statyet assumpsit may be supported, for money, &c. accruing due to the plain- ute. tiff under the provisions thereof (1), 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).

ment.

This action is also sustainable upon the judgment of a foreign Court (2), On a judgwhich is not considered as a debt of record in this country (7); and it lies upon an Irish judgment (m) (3,) and upon a Scotch decree (n).

(g) Mayor of Stafford v. Till, 12 Moore, 260; The Mayor and Burgesses of Carmarthen v. Lewis, 6 Car. & P. 608.

(h) 1 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, 112.

(k) 2 B. & P. 484.

(1) 1 Dougl. 4; 11 East, 124.

1 Campb. 63, 253.

But nei

When not,

(m) 4 B. & C. 411; 6 D. & R. 471, S. C. [11 A. & E. 179.)

(n) 4 Bing. 686; 1 M. & P. 663, S. C.

was tortious; no contract existing in such a case. Ryan v. Marsh, 2 N. & M. 156; Stockett v. Watkins, 9 Gill & John. 326; Wiggins v. Wiggins, 6 N. Hamp. 298; Rickey v Hinde, 6 Ham. 371; Lloyd v. Hough, 1 Howard, (U. S.) 153; De Young v. Buchanan, 10 Gill & Johns. 149; Ward v. Bull, 1 Branch, 271; Brewer v. Craig, 3 Harr. 214; Curtis v. Treat, 8 Shepley, 525. It is, however, competent for the parties, to waive the tort and in that case assmupsit lies. 8 Shepley, 525. Nor for rent accruing under a written lease, before its termination. Gage v. Smith, 14 Maine, (2 Shepley,) 466; Blume v. M'Clurken, 10 Watts, 380. 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.

As

(1) Pawlet v. Sandgate, 19 Vermont, (4 Washb.) 621. Assumpsit will lie upon the Vermont Statute, (Rev. Stat. c. 16, § 6,) which provides that where an order of removal is made, and the pauper cannot be removed on account of sickness, the town procuring the order to be made shall support the pauper until he can be removed, and may recover the expenses of sickness and removal from the town to which the pauper was ordered to be removed, if such town shall negleet to make payment for fifteen days after notice. Pawlet v. Sandgate, 19 Vermont, 621. sumpsit will not lie to recover back money won at play. Billon v. Hyde, 1 Ves. 330, S. C. Atk. 128. It should be debt, if the party sue under the stat. 9 Ann. c. 14; Turner v. Warner, Andr. 70; Bristow v. James, 7 Term, 257; M'Keon v. Caberty, 3 Wendell, 494. In Pennsylvania, the action may be debt or case. Act of 22d April, 1694. 3 Sm. Laws, 182. Aliter in Massachusetts, if the action be brought within three months from the losing of the money. Babcock r. Thompson, 3 Pick. 446.

(2) Vide Phil. Ev. 242, 243; Buttrick v. Allen, 8 Mass. 173; Bissell v. Bridges, 9 Mass. 464; Hubbell v. Coudrey, 5 Johns. 132. Debt also lies on such judgment, Cole v. Driskell, 1 Blackf. 16. See also Hoagland v. Rogers, 3 Blackf. 501. Debt or assumpsit, it seems, will lie on a justice's judgment from an adjoining state. Silverlake Bank v. Harding, 5 Ohio, 545.

(3) Assumpsit will not lie on a judgment rendered in a sister state, Garland v. Tucker, 1 Bibb. 361; Andrews v. Montgomery, 19 Johns. 162; M'Kim v. Odom, 3 Fairf. 94; India Rubber Co. v. Hoit, 14 Vermont, 92. But see Hubbell v. Coudrey, 5 Johns. 132; Shumway v. Stillman, 6 Wend. 447; Lambkin v. Nance, 2 Brevard, 99.

Nor on a judgment of a justice of the peace, Bain v. Hunt, 3 Hawks, 572. But see Robinson v. Prescott, 4 N. Hamp. 450; Mahurin v. Bickford, 6 N. Hamp. 567; Collins v. Modiset, 1 Blackf. 60; Adair v. Rogers, Wight, 428; in which, judgments of a justice of the peace rendered in another State are placed on the same footing with foreign judgments.

As to the effect of a judgment obtained in one of the United States, when made the subject of an action in another, see Armstrong v. Carson, 2 Dall. 302; Bartlett v. Knight, 1 Mass. 401; Bissell v. Briggs, 9 Mass. 462; Hitchcock v. Aicken, 1 Caines, 460; Taylor v. Bryden, 8 Johns. 178; Hubbell v. Coudrey, 5 Johns. 132; Phillips' Ev. Dunl. ed. 254, n. Paulding v. Wilson, 13 Johns. 192; M'Rea v. Mattoon, 13 Pick. 53; Thurbur v. Blackbourne, 1 New Hamp. 242; Shumway v. Stillman, 4 Cowen, 292; Holbrook v. Murray, 5 Wend. 161; Harrod v. Barretto, 1 Ham. 155; Harding v. Alden, 9 Greenl. 140; Winchester v. Evans, Cooke, 429; Curtis v. Gibbs, 1 Pen. 399; Miller v. Miller, 1 Bailey, 242; Wernway v. Paulding, 5 Gill & Johns. 500; Hodge v. Deoderick, 1 Yerger, 125. 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

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 (g). 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 against a corporation (3), because a corporation cannot contract by parol (s); except in the case of promissory

(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, 39.

(s) 1 Rol. R. 82; see 5 Taunt. 792; 4 Bing. 77.

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 James v. Hoar, 2 Rand. 203. As to the propriety of the plea of Nil Debet see farther, Hal! 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. Yaucy, 1 Breese, 2; Kimmell v. Shultz, 1 Breese, 128. The decision in Mills v. 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 judg ment 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; Whittier v. Wendell, 7 N. Hamp. 257; Adams v. 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 v. Higgs, 8 Wheat. 697; Storer v. Hinkley, 3 Caines, 37. Aliter, 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 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 v. Overseers of S. Whitehall, 3 Serg. & Rawle, 117; Ellis v. Merrimac Bridge, 2 Pick. 243. Poultney 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 v. 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. Mechanic'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. Mechanics' Fire Ins. Co. 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.

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 [*107] 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) (2).

be a con

Where there has been express contract, the party injured may sustain In general an action of assumpsit, though the breach amount to a trespass (y); but there must unless there have been such contract, or the law will, under the circum- tract. stances, 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 representation (c) (6). The cases in which the plaintiff may

(1) 3 & 4 Ann. c. 9.

(u) 5 B. & Ald. 204; 3 B. & Ald. 1; 2 Barr. 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 E. Till, 1 Moore, 260; Mayor of Carmarthen C. Lewis, 6 Car. & P. 608; 4 Bar. & Cres..

962, 968; 7 D. & R. 376, 381, S. C.
(x) 2 C. & P. 385.

(y) 2 Wils. 321; 3 Wils. 354.
(z) 1 Campb. 360; 1 T. R. 386.

(a) 1 T. R. 378, 386, 387; Lord Raym.
1516; Bac. Ab. Assumpsit, A; 2 Stra. 1239;
1 Campb. 350.

(b) 4 Campb. 22, 144, 169; 12 East, 11.
(c) 4 C. & P. 45.

(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 . 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, 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. 208; 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 v. Treat, 8 Shepley, 525; Lloyd v. Hough, 1 Howard, (U. S.) 153; De Young v. Buchannan, 10

Gill & Johns. 149.

1. waive a tort or trespass and declare in assumpsit, have been already adABSUMPSIT, verted to (d) (1). 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) (2). 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.

[*108 ]

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) (3), 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 Court established by virtue of an act of parliament, which deprives a party suing elsewhere of the right to costs.

(d) Ante, 100, 101.

(e) Ibid.

(f) 9 B. & C. 59.

(g) Bac. Ab. Assumpsit, F.
(h) 43 Eliz. c. 6.

In

(1) 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 v. 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.

(2) 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 v. 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.

(3) The consideration must be truly stated, and proved as laid. 528; Shelton v. Bruce, 9 Yerger, 24.

Moore v. Ross, 7 N. Hamp.

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).

I.

ASSUMPSIT.

II. DEBT.

The action is so called because it is in legal consideration for the re- 1. DEBT. covery of a debt (1) eo nomine and in numero; and though damages arc 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).

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 (l); 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,

(i) Tidd. 9th ed. 516.

(k) 1 H. Bl. 550; Bul. N. P. 167; Cowp. 688.

() 1 Hob. 206; Com. Dig. Debt, A. 1. (m) Hob. 206; Bul. N. P. 167; Com. 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, 825. 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. Hickson, 1 Blackf. 231. See also to the same effect, Osborne v. Fulton, 1 Blackf. 234; Harpey v. Levy, 1 Black. 294; Cassady v. Laughlin, 3 Blackf. 134. But it is intimated 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 v. Hall, 1 Humph. 480; Taylor v. Meek, 4 Blackf. 388; Gregory v. Bewley, 5 Pike, 818.