tracts, and consequently on a bill of exchange or promissory note, it would be improper to introduce numerous decisions on the requisites of bills of exchange or promissory notes, which would throw no light on the application of the form of action, but extend the inquiry to the whole law respecting bills of exchange. So after stating that covenant is the proper remedy on a lease, cases respecting the construction of particular covenants ought not to be introduced. It will be found, that notwithstanding the very extensive alterations of late introduced respecting writs or process to bring a defendant into Court, in personal actions, by the Uniformity of Process Act, 2 W. 4, c. 39, and generally throughout the practical mode of conducting an action by numerous modern rules, and in the pleadings in an action by Reg. Gen. Hilary Term, 4 W. 4, yet there have been very few alterations respecting the forms of actions, and which will principally be found in 3 & 4 W. 4, c. 42, such as the enactments authorizing actions of debt on simple contract against executors or administrators, and allowing actions for torts to personal or real property to be sustained by and against executors. IN GENERAL 1. ASSUMPSIT. 1. This action is so called from the word Assumpsit, which when the. pleadings were in Latin, was always inserted in the declaration, as de- ASSUMP BIT. scriptive of the defendant's undertaking (y). It may be defined to be an action for the recovery of damages for the non-performance of a parol or simple contract, or, in other words, a contract not under seal *nor of re- [ *99 ] cord (z), circumstances which distinguish this remedy from others; for the action of debt is, in legal consideration, for the recovery of a debt eo nomine, and in numero, and is most frequently brought upon a deed (a); and the action of covenant, although in form for the recovery of dama ges, can only be supported upon a contract under seal. Assumpsit, however, is not sustainable, unless there have been an express contract, or unless the law will imply a contract (1). Though founded upon contract, this action, as distinguishable from the brevia formata, and falling within the provision of the Statute of Westminster, may be termed an action on the case (b). (y) The word "undertook," was always considered proper to be inserted in the declaration, though the promise be founded on a legal liability, and though in evidence it would be implied, Bac. Ab. Assumpsit, F. But it is sufficient to aver that the defendant promised. And the forms of declaration prescribed by Reg. Gen. Trin. Term, 1 W. 4, adopt only the word "promise," and are in other respects more concise than heretofore. (z) Contracts are, 1. of Record; 2 by Specially; or 3 by Parol. The term Parol, or simple contract, signifies every contract not under seal or of record, whether verbal or written. 7 T. R. 351. (a) 1 Hen. Bla. 551, 554, 555; Bul. N. P. 167. (b) Bac. Ab. Assumpsit; Gilb. C. P. 6; 2 Bla. Rep. 850. (1) To maintain assumpsit there must be a privity between the parties, but it may be a priv ity in fact or in law. Between each party to a bill or negotiable note, and every other party, there is a sufficient privity in law to sustain the action. Frazer v. Carpenter, 2 McLean, 237. 1. ASSUMPSIT. It is now, however, called an action of assumpsit, and when the term case is adopted in the statute, or otherwise, an action for a tort and in form ex delicto, is usually intended, and not an action in form ex contractu (c). A minute inquiry into the history of this action would at this time be matter of curiosity rather than of practical utility. The origin and progress of it may be collected from the reports and works referred to in the note (d); and from which it appears, that till Slade's case (e), a notion prevailed, that on a simple contract for a sum certain, or for any money demand, the action must be in debt; but it was holden in that case, that the plaintiff had his election either to bring assumpsit or debt. From the penning of the statute 3 Jas. 1 (ƒ) it is probable the action of assumpsit was not then much in use; but afterwards it became very general (g), and it is now more frequently adopted for the recovery of money due on a simple contract, than the action of debt. From these cases it also appears (h), that though before Slade's case an action on the case might be supported, as well for the non-feasance of a contract, as for misfeasance or malfeasance in the performance of it, yet from the form of the writ in Fitzherbert (i), it may be collected that the remedy was not similar to our present action of assumpsit, but rather resembled the present form of a declaration in case for a tort (k). The breach of all parol or simple contracts, whether verbal or written, or express or implied (1), or for the payment of money, or for the per[*100] formance or omission of any other act, is remediable by action of as sumpsit (1). Thus it lies to recover money lent by the plaintiff to the *defendant, or paid by the plaintiff on the account of the defendant at his request, or had and received by the defendant to the use of the plaintiff. In some cases, though money may have been received by the defendant tortiously, or by duress of the person or goods, it may be recovered in this form of action (2), the law implying a contract in favor of the party (c) 7 T. R. 36. The declaration in assumpsit describes the plea to be "trespass on the case upon promises." (d) Rudder v. Price, 1 Hen. Bla. 550 to 655; Doug. 6, 7; Slade's case, 4 Co. 91 to 95; 3 Woodd. 168, 169, n (c); Reeves, vols. iii. and iv.; 1 Vin. Ab. 276; Bro. Ab. Action sur le case, pl. 7, 69, 72; Fitz. N. B. 94, A. n. (a), 145, G.; 1 New Rep. 295; 2 Bla. Rep. 850. (e) 4 Co. 91 to 95, 44 Eliz. (f) 3 James 1, c. 8. (g) Per Buller, J., Dougl. 6. (h) Bro. Ab. Actions sur le Case, pl. 7, 69, 72; Fitz. N. B. 94. A. 145, G.; Bac. Ab. Assumpsit, C. (i) N. B. 94, A.; 3 Woodd. 165; 2 Bla. Rep. 850. (k) 1 Hen. Bla. 550, 551. (1) 4 M. & Sel. 275; 3 M. & Sel. 191; 1 Taunt. 112. (1) The action of assumpsit is founded on a promise express or implied. Metcalf v. Robinson, 2 McLean, 364. (2) So, an action for money had and received lies against a collector, for money unlawfully demanded, and paid by the plaintiff to obtain a clearance for his vessel, which was refused until the money was paid. Ripley v. Gelston, 9 Johns. 201. So, it lies against a clerk of the District Court to recover money exacted colore officii from the plaintiff, as a condition of the redelivery of property which had been liberated from seizure. Clintoe v. Strong, 9 Johns. 370. So, it has been held to lie against a deputy postmaster, to recover the excess of postage on a letter, beyond what was allowed by law. Williams v. Dodd, Superior Court of Connecticut, cited 2 Day's Esp. 154, n. 1. Against a magistrate to recover fees illegally taken. Prior v. Craig, 5 Serg. & Rawle, 48. But in the case of a voluntary payment of money which the party could not have been compelled to pay, no action will lie to recover it back. Hall v. Schultz, 4 Johns. 240, and n. a. 2d ed. Ibid. 1 Esp. Dig. 119. And to recover money obtained through fraud and misrepresentation. Dana v. Kemble, 17 Pick. 545. entitled (m) (1) as against a person who has usurped an office, and received the known and accustomed fees of office, (2) but mere gratuitous donations cannot be recovered in assumpsit (n). So assumpsit lies for the value of goods which the defendant by fraud induced the plaintiff to sell to an insolvent person, and afterwards obtained for his own benefit (o). And where the goods of a trader, after his act of bankruptcy, are taken in execution, or otherwise tortiously disposed of without the concurrence of the assignees, they may waive the tort, and declare in assumpsit for money had and received, if the goods have been sold (h), but they must adopt the latter form of action if they have affirmed and recognized the wrongful sale and waived the original tort (q). Assumpsit also lies to recover money paid or goods delivered by a bankrupt by the way of fraudulent preference (r); and there are many other instances in which a party may waive the tort, and sue for money had and received (s) (3). But in these cases it is sometimes most advisable to declare in case or trover, in order to avoid a set-off, or the effect of the law of mutual credit (4), in the case of bankruptcy (t). So a master may sue a person who has enticed away or harbored his apprentice in assumpsit, for the work and labor of such apprentice (u) (5); and it lies to recover back rents tortiously received (2). In some cases also where money has been extorted by duress of goods, it may be recovered back in assumpsit (y). But the proprietor of cattle wrongfully distrained damage feasant, who has paid money for the purpose of having them re-delivered to him cannot recover back that money in this action, because such mode of proceeding would impose great difficulties on the defendant, by not apprizing him of what he was to defend; and the law has provided specific remedies for trying the legality of a dis (m) 3 Wills. 304; 2 T. R. 144; Cowp. 419; Bul. N. P. 131; 5 Moore, 525; 1 B. & C. 418; 2 D. & R. 568; S. C.; 2 Bar. & Cres. 129, 4 D. & R. 283, S. C. (n) 6 T. R. 681; 8 Taunt. 264; 1 Camp. 124. (0) 3 Taunt. 274; 5 Moore, 98; 1 B. & C. 418; 2 D. & R. 568; S. C. 16 East, 130. Where the ground of action is (u) 3 M. &. Sel. 191; 1 Taunt. 112, When (x) 6 T. R. 683; Bul. N. P. 133; Cowp. 414. (y) Pratt v. Vizard, 5 Bar. & Adol. 808; 2 Stra. 915; 4 T. R. 485; Bul. N. P. 132; 5 Bing. 37; 7 B. & C. 73; 9 D. & R. 889, S. C.; (1) 4 T. R. 211; see 10 East, 378, 418; 1 Wightw. 22. I. ASSUMPSIT. (1) Vide Dumond v. Carpenter, 3 Johns. 183; Sturtevant v. Waterbury, 2 Hall's N. Y. 453. (2) Where a married man represents himself to be a widower, and thus induces a woman to marry him, while his first wife is alive, such woman may recover of him for her services, during such time as she may live with him, in assumpsit. Higgins v. Brown, 9 Missouri, 497. (3) See post, 107 note, and cases cited to this point, of waiver of tort. (4) Vide Billon v. Hyde, 1 Ves. 329, S. C. 1 Atk. 126; Hussey v. Fidell, 12 Mod. 324, S. C. Holt, 95; Phillips v. Thompson, 3 Lev. 191. Authorities limiting the right of set-off to cases of mutual debts, and excluding the right to set off torts, and damages upon a special agreement. M'Donald v. Neilson, 2 Cowen. 139. (5) If a slave deserts his master and goes into the service of another, the master can recover for services performed by the slave before he gives notice of his claim. Trongott v. Byres, 5 Cowen, 480.* Case of James Le Roy, 6 Johns, 274. But this principle is not to be applied to a case where the master never had possession of the slave, and was chargeable with concealing his claim from the defendant, while the slave was performing the services. Demyer v. Souzer, Wend, 436. ASSUMPSIT. I. tress (1), viz. replevin, trespass, or trover (z). Again, this action lies to recover interest (2); money due on an account stated (3); or for services and works of different descriptions, and for poundage due to the sheriff (a); or for the sale, use, or hire of goods or of land, or other personal or real property; and upon bills of exchange, whether foreign or inland; checks on bankers; promissory notes; policies of insurance on ships, or on lives, or against fire; or on charter-parties, when not under seal; and upon the implied contract to contribute towards the general average (b). Assumpsit is also sustainable specially upon wagers (4) and feigned issues; and upon awards, where the submission was not by deed (5); also, to recover money due on an award made by virtue of an order of Nisi Prius (c); on by-laws (d); of an Irish (e), or foreign judgment (ƒ) (6) or · for legacies charged on land (g) (7), though the debt is more usual in the last three instances (8). But neither assumpsit nor any other form of action at law, is sustainable for a pecuniary legacy payable out of the (1) By recovering a judgment in trespass for carrying away the plaintiff's goods, his property in the goods is divested; and such judgment is bar to an action of indebitatus assumpsit against any one for the proceeds of the sale of the goods which were the subject of the trespass. Floyd v. Brown, 1 Rawle, 121. The owner of property in possession of a tenant of demised premises, may buy it on a sale of the same as a distress for rent, and bring his action for money paid against the tenant. Wells v. Potter, 7 Wend. 119. (2) Vide Tucker v. Randall, 2 Mass. 284; Greenleaf v. Kellogg, 2 Mass. 268. But after acceptance of the principal, an action will not lie for the interest. Tillotson v. Preston, 3 Johns. 229; Johnston v. Brannan, 5 Johns, 268. (3) But not on a running account. Scott v. M'Intosh, 2 Camp. 238. (4) Philips v. Ives, 1 Rawle, 36. (5) Mitchell v. Bush. 7 Cow. 185; Bates v. Curtis, 21 Pick. 247; Tullis v. Sewall, 3 Ham. 510. And a revocation of a submission to abitration not under seal, before an award, for which assumpsit will lie. Brown v. Tanner, M'Clell. & Young, 464. An award may be given in evidence under the money counts. Brady v. Mayor, &c. of Brooklyn, 1 Barbour, 584. (6) See in reference to judgments of other States. Lambkin v. Nance, 2 Brevard, 99; Shumway v. Stillman, 6 Wendell, 447; M'Kim v. Odom, 12 Maine, 94, 110; India Rubber Co. v. Hoit, 14 Vermont, 92. So an action of assumpsit may be sustained in Massachusetts upon an instrument made in another state, and which by the law of that state is a specialty, if by the law of Massachusetts it is a simple contract. M'Clees v. Burt, 5 Metcalf, 198. (7) Vide Beecker v. Beecker, 7 Johns. 99, which was an action of assumpsit against a devisee of land charged with a legacy; the devisee having entered on the land, and the executors assented to the legacy, it was held that he was liable on his express promise to pay the legatee; the court avoided giving an opionion, whether he would have been liable on an implied promise. There are circumstances, however, which may amount to an express promise; as where an annuity is charged by the will of the devisor upon the land devised, if the devisee has entered and actually paid part of the annuity, the legatee may maintain assumpsit for the residue. Van Orden v. Van Orden, 10 Johns. 30; See Deeks v. Strutt, 5 Term 690, contra, and the observations of the court upon that case in 10 Johns. 31. That the action cannot be maintained without an express promise, see Brown v. Furer, 4 Serg. & Rawle, 213. The proper mode of proceeding in such a case in Pennsylvania is, to bring the action against the executor and terre-tenants, and to enter the judgment so as to charge the land, and not the persons of the defendants. Brown v. Furer, Gauze v. Wiley, 4 Serg. & Rawle, 504. And in such action it is improper to join, as a defendant, the executor of the devisee. Moore v. Rees, 12 Serg. & Rawle, 436. (8) Vide Hubbell v. Coudrey, 5 Johns. 182, and n. a. ibid. But debt will not lie against an administrator in Pennsylvania on a judgment obtained in a foreign court against a foreign administrator of the same intestate. Brodie v. Bickley, 2 Rawle, 431. I. general assets of the testator (h)(1); or for a distributive share of an intestate's property, to which the plaintiff is entitled (i), although the ASSUMPSIT. personal representative has promised payment; unless there be evidence showing that he holds the money, not as executor or administrator, but in his individual character upon a new contract for a loan of it to him (k). It may also be supported for money due for tithes, where there has been an agreement for a composition (1): but unless there have been such a composition, the only remedy is in a Court of Equity or in the Ecclesiastical Courts; or in debt upon the statute (m), to recover the treble value of the tithe omitted to be set out, and which act extends only to prædial tithes that are capable of being set out in kind (n). This form of action is also maintainable for money due for tolls (2), or to recover the value of goods which should have been rendered in specie for toll; but in such case the declaration must state that the goods were of some certain value (o). Assumpsit also lies for money due for port duties, and for stallage, where there is a legal liability to pay, although there has not been any express contract (p), and this although trespass might be sustainable, because the owner may waive the tort (p). So it lies for contributions to partywalls (q)(3); or canal calls (r); or on promises to pay money in consideration of forbearance to sue the defendant, or a third person (4); or in consideration of services or work done; or goods sold to the defendant, or a third person at the defendant's request; and upon contracts to guaran- [ *102] tee(s); indemnify (t); to serve and employ (u), or perform works (x)(5); and against attorneys and solicitors (6), wharfingers (y), surgeons (2), inn-keepers (a), carriers and other bailees, for neglect or other breach of (h) 5 T. R. 690; 7 B. & C. 544; 1 M. & R. 420, S. C. (i) 7 B. & C. 542, 1 M. & R. 420, S. C. (k) 1 M. & P. 209. (1) Post, vol. ii.; Bac. Ab. Tithe, Y. D. d.; Bul. N. P. 488 to 491. (m) 2 & 3 Edw. 6, c. 13. (n) Bul. N. P. 188; Eagle on Tithes, 150. (0) 4 B. & A. 268; 6 B. & C. 385; 9 D. & R. 452, S. C. (p) The Mayor of Newport v. Saunders, 3 Bar.& Adol. 411. (1) Assumpsit lies against an executor for a pecuniary legacy on his express promise in consideration of assets. Atkins and ux. v. Hill, and Hawkes and ux. v. Saunders, Cowp. 284. 283; Beecker v. Beecker, 7 Johns. 103, 104; Opinion of KENT, C. J. Clark v. Herring, 5 Binn. 33; Van Orden v. Orden, 10 Johns. 31. And in the States of N. York and Penn., actions at law against executors for legacies, are given by statute. Laws N. Y. sess. 36, c. 75, s. 19; 1 R. L. 314; 2 Rev. Stat. 114, 8. 9. Dewitt and wife v. Schoonmaker, 2 Johns. 243; Wilson v. Wilson, 3 Binn. 559. Assumpsit lies for a pecuniary legacy in Pennsylvania, without any express promise. Clark v. Herring, 5 Binn. 98. In Massachusetts, Farwell v. Jacobs, 4 Mass. 635. In Connecticut, Warren v. Rogers, 2 Root, 166; Ruaff v. Hanford, 6 Conn. 176. In New Jersey, Cowell v. Oxford, 1 Halst. 430; Woodruff v. Woodruff, 2 Penn. 552. In North Carolina, on an express promise, M'Neil v. Quince, 2 Hayw. 153. In New York, see Kelsey, Deyo, 3 Cow. 133; Tole v. Hardy, 6 Cow. 333. (2) Bearcamp River Co. v. Woodman, 2 Greenl. 404; Proprietors v. Taylor, 6 N. Hamp. 499; Obesley v. Smith, 1 N. Hamp. 20; Proprietors of Quincy Canal v. Newcomb, 7 Metcalf, 276. But see Centre Turnp. Co. v. Smith, 12 Vermont, 212. (3) Ingleas v. Bringhurst, 1 Dall. 341; See Hart v. Rucher, 5 Serg. & Rawle, 1. (4) An action of assumpsit lies to recover counsel fees. Wilson v. Burr, 25 Wendell, 888. (5) Sidwell v. Evans, 1 Penn. 383; Canfield v. Merrick, 11 Conn. 425. (6) Stimpson v. Sprague, 6 Greenl. 471; Church v. Mumford, 11 Johns. 479; Ellis v. Hen17, 5 J. J. Marsh. 248; Varnum v. Martin, 15 Pick. 440. |