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cover the term (if in being) and damages, in case the ouster was committed by the lessor himself; or if the term was expired, or the ouster was committed by a stranger, claiming by an elder title, then to recover damages only. (c)

No person could at common law take advantage of any covenant or condition, except such as were parties or privies thereto; and, of course, no grantee or assignee of any reversion or rent. To remedy which and more effectually to secure to the king's grantees the spoils of the monasteries then newly dissolved, the statute 32 Hen. VIII. c. 34. gives the assignee of a reversion (after notice of such assignment) (d) the same remedies against the particular tenant, by entry or action, for waste or other forfeitures, non-payment of rent, and non-performance of conditions, covenants, and agreements, as the assignor himself might have had; and makes him equally liable, on the other hand, for acts agreed to be performed by the assignor, except in the case of warranty.

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3. A promise is in the nature of a verbal covenant, and wants nothing but the solemnity of writing and sealing to make it absolutely the same. If therefore it be to do any explicit act, it is an express contract, as much as any covenant; and the breach of it is an equal injury. The remedy indeed is not exactly the same since, instead of an action of covenant, there only lies an action upon the case, for what is called the assumpsit or undertaking of the defendant; the failure of performing which is the wrong or injury done to the plaintiff, the damages whereof a jury are to estimate and settle. As if a builder promises, undertakes, or assumes to Caius, that he will build and cover his house within a time limited, and fails to do it; Caius has an action on the case against the builder, for this breach of his express promise, undertaking, or assumpsit; and shall recover a pecuniary satisfaction for the injury sustained by such delay.13 So also in the case before-mentioned, of a debt by simple contract, if the debtor promises to pay it and does not, this breach of promise [159] entitles the creditor to his action on the case, instead of being driven to an action of debt. (e) Thus likewise a promissory note, or note of hand not under seal, to pay money at a day certain, is an express assumpsit; and the payee at common law, or by custom and act of parliament the indorsee, (f) may recover the value of the note in damages, if it remains unpaid. Some agreements indeed, though never so expressly made, are deemed of so important a nature, that they ought not to rest in verbal promise only, which cannot be proved but by the memory (which sometimes will induce the perjury) of witnesses. To prevent which, the statute of frauds and perjuries, 29 Car. II. c. 3. enacts, that in the five following cases no verbal promise shall be sufficient to ground an action

d Co. Litt. 215. Moor. 876. Cro. Jac. 145.

c Bro. Abr. t. covenant. 33. F. N. B. 476.
f See Book II. ch. 30.

e 4 Rep. 99.

upon, but

(12) As to contracts not under seal, see 3 Chitty Com. L. per tot. As to the action of assumpsit, see Com. Dig. Action on the Case upon Assumpsit; and 1 Chitty Pl. 4 ed. 85 to 97.

(13) "It is worthy of remark, that the learned Commentator has not either named, described, or even alluded to the consideration requisite to support an assumpsit; and, what is more remarkable, the example put by him in the text in order to illustrate the nature of the action, is, in the terms in which it is there stated, a case of nudum pactum. See 1 Roll. Ab. 9. 1. 41. Doct. & Stud. 2. ch. 24. and 5 T. R. 143. that the promise will not lie for a mere nonfeasance, unless the promise is founded on a consideration. This remark ought not, neither was it intended, to derogate from the merit of a justly celebrated writer, who, for comprehensive design, luminous arrangement, and elegance of diction, is unrivalled." Selw. N. P. 45.

at the least some note or memorandum of it shall be made in writing, and signed by the party to be charged therewith: 1. Where an executor or administrator promises to answer damages out of his own estate. 2. Where a man undertakes to answer for the debt, default, or miscarriage of another. 3. Where any agreement is made, upon consideration of marriage. 4. Where any contract or sale is made of lands, tenements, or hereditaments, or any interest therein. 5. And lastly, where there is any agreement that is not to be performed within a year from the making thereof. In all these cases a mere verbal assumpsit is void.14

From these express contracts the transition is easy to those that are only implied by law. Which are such as reason and justice dictate, and which therefore the law presumes that every man has contracted to perform; and upon this presumption makes him answerable to such persons as suffer by his non-performance.

Of this nature, are, first, such as are necessarily implied by the funda mental constitution of government, to which every man is a contracting

party. And thus it is that every person is bound and hath virtual[160] ly agreed to pay such particular sums of money as are charged on

him by the sentence, or assessed by the interpretation of the law, For it is a part of the original contract, entered into by all mankind who

(14) These provisions in the statute have produced many decisions, both in the courts of law and equity. See 3 Chitty's Com. L. per tot. It is now settled, that if two persons go to a shop, and one order goods, and the other say, "if he does not pay I will," or "I will see you paid," he is not bound unless his engagement is reduced into writing. In all such cases the question is, who is the buyer, or to whom the credit is given, and who is the surety: and that question, from all the circumstances, must be ascertained by the jury: for if the person for whose use the goods are furnished be liable at all, any promise by a third person to discharge the debt must be in writing, otherwise it is void. 2 T. R. 80. H. Bl. Rep. 120. 1 Bos. & Pul. 158. Mutual promises to marry need not be in writing; the statute relates only to agreements made in consideration of the marriage. A lease not exceeding three years from the making thereof, and in which the rent reserved amounts to two-thirds of the improved value, is good without writing; but all other parol leases or agreements for any interest in lands, have the effect of estates at will only. Bull. N. P. 279. All declarations of trusts, except such as result by implication of law, must be made in writing. 29 Car. II. c. 3. s. 7 & 8. If a promise depends upon a contingency, which may or may not fall within a year, it is not within the statute; as a promise to pay a sum of money upon a death or marriage, or upon the return of a ship, or to leave a legacy by will, is good by parol; for such a promise may by possibility be performed within the year. 3 Burr. 1278. 1 Salk. 280. 3 Salk. 9, &c. Partial performance within the year, where the original understanding is, that the whole is to extend to a longer period, does not take the case out of the statute. 11 East, 142. But even a written undertaking to pay the debt of another is void, unless a good consideration appears in writing, and the consideration, if any, cannot be proved by parol evidence. 5 East, 10. If a growing crop is purchased without writing, the agreement, before part execution, may be put an end to by parol notice. 6 East, 602. By the first and third sections of the statute of frauds, the 29 Car. II. c. 3. the contracts there specified must be signed by the party, or his agent authorized by writing; but the agreements specified in the fourth section must be signed by the party, or some one by him lawfully authorized; and the words by writing are there omitted. Lord Redesdale has said upon this, that at all times (as well before the act as since) it was necessary to have an authority in writing for creating or passing any estate in land for another; it was otherwise as to contracts, which passed no estate. Therefore an agent, authorized by parol, may make such a written agreement for his principal, as will be sufficient for a court of equity to decree a specific performance of. Scho. & Lef. 22. With regard to the contracts for goods of the value of 101. see 2 Book, 448. n. 6. & 7. But a court of equity will decree a specific performance of a verbal contract, when it is confessed by a defendant in his answer; or when there has been a part performance of it; as by payment of part of the consideration mo. ney, or by entering and expending money upon the estate, for such acts preclude the party from denying the existence of the contract, and prove that there can be no fraud or perjury in obtaining the execution of it. 3 Ves. Jun. 39. 378. & 712. But lord Eldon seems to think that a specific performance cannot be decreed, if the defendant in his answer admits a parol agreement, and at the same time insists upon the benefit of the statute. 6 Ves. Jun. 37. If one party only signs an agreement, he is bound by it; and if an agreement is by parol, but it is agreed it shall be reduced into writing, and this is prevented by the fraud of one of the parties, performance of it will be decreed. 2 Bro. 564, 5, 6. See 3 Wood. Lect. Ivii. and Fonblanque Tr. of Eq. b. 1. c. 3. s. 8 & 9. where this subject is fully and learnedly discussed. Chitty.

partake the benefits of society, to submit in all points to the municipal constitutions and local ordinances of that state, of which each individual is a member. Whatever therefore the laws order any one to pay, that becomes instantly a debt, which he hath before-hand contracted to discharge. And this implied agreement it is, that gives the plaintiff a right to institute a second action, founded merely on the general contract, in order to recover such damages, or sum of money, as are assessed by the jury and adjudged by the court to be due from the defendant to the plaintiff in any former action. So that if he hath once obtained a judgment against another for a certain sum, and neglects to take out execution thereupon, he may afterwards bring an action of debt upon this judgment, (g) and shall not be put upon the proof of the original cause of action; but upon shewing the judgment once obtained, still in full force, and yet unsatisfied, the law immediately implies, that by the original contract of society the defendant hath contracted a debt, and is bound to pay it. This method seems to have been invented, when real actions were more in use than at present, and damages were permitted to be recovered thereon; in order to have the benefit of a writ of capias to take the defendant's body in execution for those damages, which process was allowable in an action of debt (in consequence of the statute 25 Edw. III. c. 17.) but not in an action real. Wherefore, since the disuse of those real actions, actions of debt upon judgment in personal suits have been pretty much discountenanced by the courts, as being generally vexatious and oppressive, by harassing the defendant with the costs of two actions instead of one.15

On the same principle it is (of an implied original contract to submit to the rules of the community whereof we are members), that a forfeiture imposed by the bye-laws and private ordinances of a cor- [161] poration upon any that belong to the body, or an amercement set in

a court-leet or court-baron upon any of the suitors to the court (for other. wise it will not be binding), (h) immediately create a debt in the eye of the law and such forfeiture or amercement, if unpaid, work an injury to the party or parties entitled to receive it for which the remedy is by action of debt. (i)

The same reason may with equal justice be applied to all penal statutes, that is, such acts of parliament whereby a forfeiture is inflicted for transgressing the provisions therein enacted. The party offending is here bound by the fundamental contract of society to obey the directions of the legislature, and pay the forfeiture incurred to such persons as the law requires. The usual application of this forfeiture is either to the party ag

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(15) Upon the same principle, it was enacted by the 43 Geo. III. c. 46. s. 4. that in actions on judgments, the plaintiff shall not be entitled to any costs of suit, unless the court, or some judge of the court in which the action is brought, shall otherwise order. The first case upon this clause of the acts, seem to be, 14 East, 343.; and the court held, that it extends only to judgments recovered by plaintiffs, and not to a judgment obtained by the defendant, and suing thereon for the costs. And where a judginent was signed, and execution taken out for costs in an action on a judgment, without leave of a court or a judge, under this enactment, it was held irregular. But where recognizances of bail were taken in the common pleas, and bail sued in that court to judg inent, and having no property, actions were brought in the king's bench, in order to take their persons; costs were allowed nunc pro tunc. 1 Chitty R. 190. And the section before referred to, does not entitle a defendant to stay the proceedings on payment of the debt without costs, where there is probable ground for the plaintiff's also claiming interest on part of the debt. 1 Chitty R. 473. And the court gave the plaintiff costs in an action on a judgment, where the defendant had sued out a writ of error, and pleaded nul tiel record. 5 Taunt. 264.

grieved, or else to any of the king's subjects in general. Of the former sort is the forfeiture inflicted by the statute of Winchester (k) (explained and enforced by several subsequent statutes) (1) upon the hundred wherein a man is robbed, which is meant to oblige the hundredors to make hue and cry after the felon; for if they take him, they stand excused. But otherwise the party robbed is entitled to prosecute them by a special action on the case, for damages equivalent to his loss. And of the same nature is the action given by statute 9 Geo. I. c. 22. commonly called the black act, against the inhabitants of any hundred, in order to make satisfaction in damages to all persons who have suffered by the offences enumerated and made felony by that act. But more usually, these forfeit

k13 Edw. I. c. 1.

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127 Eliz. c. 13. 29 Car. II. c. 7. 8 Geo. II. c. 18. 22 Geo. II. a. 24

(16) In order to maintain an action under this statute against the hundred, for damages sustained by burning plaintiff's barn, &c. the notice required by s. 8. must be given to some of the inhabitants before the plaintiff's examination on oath is delivered to the magistrate. 1 Bro. & Bing. 64. 3 Moore, 319. And to entitle the party aggrieved to sue under the act for a loss by fire, he must specifically state in his examination, delivered to the magistrate, whether he does or does not know the person or persons, or any of them," who committed the fact; so that perjury may be assigned on the statement, if false. Therefore, to say he suspects it to have been done by some person or persons to him unknown, is insufficient. 3 East, 400. And where, after 66 person or persons," the words "or any or either of them" were omitted, the plaintiff was nonsuited. If the premises burnt be in the care of several servants of the owner, they should all be examined before a magistrate, within four days after the requisite notice of the fact committed, to entitle the party to his action under the act. 4 B. & C. 167. Persons who are in the actual possession of the premises, though as servants, and under the superintendance of a person not residing on them, are persons having the care of the premises, within the act. 4 B. & C. 167. But the plaintiff may recover, although he has previously received the full amount of his loss from the directors of an insurance office. 2 B. & C. 254. 3 Dowl. & Ry. 489. And evidence which may reasonably induce the jury to believe that the fire was wilful and malicious, is sufficient, 4 Dowl. & Ry. 250.; but if the offender is convicted within six months, under this act, the hundred is not liable. Dougl 704. A mill-house, not connected with any dwelling-house by a communication therewith, is not a building within the act. 3 East, 457.

The various statutes by which hundreds are made liable are, 1st, the riot act, 1 Geo. I. c. 5. 2dly, the black act, 9 Geo. I. c. 22. (above noticed); 3dly, the 29 Geo. II. c. 36. for killing cattle, cutting down trees, burning houses, &c. ; 4thly, the 8 Geo. II. c. 20. for destroying turnpikes, and works on navigable rivers; 5thly, the 10 Geo. II. c. 32. for cutting hop-binds; 6thly, the 11 Geo. I. c. 22. and 36 Geo. III. c. 9. for forcibly hindering the exportation of corn; 7thly, the 9 Geo. II. c. 34. for satisfying damages and recompensing officers of customs or excise wounded, &c. by offenders against the revenue laws; 8thly, the 41 Geo. III. c. 24. for injuries to mills; 9thly, the 52 Geo. III. c. 130. for setting fire to manufactories, engines, &c.; 10thly, the 56 Geo. III. c. 125. for injuries to collieries, or engines used therein; 11tbly, the 57 Geo. III. c. 19. s. 38. for injuries by tumultuous assemblies, making the city or town liable if not within a hundred; and, lastly, the S Geo. IV. c. 33., which was passed to amend and alter these several statutes, so far as the same relate to the recovery of damages committed by riotous and tumultuous assemblies, and unlawful and malicious offenders; the 1st section of which provides, that no action shall be brought against the inhabitants of any place, in respect of the pulling down, damaging, &c. churches, chapels, dwelling-houses, barns, &c. mills, buildings, or engines for carrying on trade, bridges, waggon ways, staiths, stacks of corn, hay, wood, &c. or injury to cattle, &c. enumerating the several kinds of property in the former statutes, unless the damage exceed 301. The 2d section provides, that where the damage does not exceed that amount, the parties injured shall give notice in the form of the schedule annexed to the act, within one month, to the high constable, mayor, or chief magistrate of the place, or the churchwardens or overseers, if there be no high constable, or to any two substantial householders, not being interested; and the receiver of such notice is thereupon (under a liability to an action for neglect) to give notice in writing to the magistrates, who are to summon a petty session. And the party damnified is to place a notice, in the form annexed to the act, upon the church-door, or other conspicuous place in the parish, &c. two successive Sundays before such petty session is held. The 4th section empowers the magistrates, or any two of them, in such session, to hear the case, and order damages and costs to be paid out of such funds as are at present raised for such purposes. The usual appeal to the quarter sessions is also provided by a clause in the act. The act further provides, that the defendants may, in any action under these acts, with the approbation of one or more of the local justices of the peace, suffer judgment to go by default, instead of appearing and defending the same, as directed by the said recited acts; but the plaintiff is nevertheless to establish his claim by the same proof before the sheriff or other officer taking the inquisition, as would be required if such action had been defended.

ures created by statute are given at large to any common informer; or, in other words, to any such person or persons as will sue for the same: and hence such actions are called popular actions, because they are giv. en to the people in general. (m) Sometimes one part is given to the king, to the poor, or to some public use, and the other part to the informer or prosecutor; and then the suit is called a qui tam ac. [162] tion, because it is brought by a person qui tam pro domino re.

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ge, &c. quam pro se ipso in hac parte sequitur." If the king there. fore himself commences this suit, he shall have the whole forfeiture. (n) But if any one hath begun a qui tam, or popular, action, no other person can pursue it; and the verdict passed upon the defendant in the first suit is a bar to all others, and conclusive even to the king himself. This has frequently occasioned offenders to procure their own friends to begin a suit, in order to forestall and prevent other actions; which practice is in some measure prevented by a statute made in the reign of a very sharpsighted prince in penal laws, 4 Hen. VII. c. 20. which enacts that no recovery, otherwise than by verdict, obtained by collusion in an action popu. lar, shall be a bar to any other action prosecuted bona fide." A provision that seems borrowed from the rule of the Roman law, that if a person was acquitted of any accusation, merely by the prevarication of the accuser, a new prosecution might be commenced against him. (0)

A second class of implied contracts are such as do not arise from the express determination of any court, or the positive direction of any sta. tute; but from natural reason, and the just construction of law. Which class extends to all presumptive undertakings, or assumpsits; which, though never perhaps actually made, yet constantly arise from this gene. ral implication and intendment of the courts of judicature, that every man hath engaged to perform what his duty or justice requires. Thus,

1. If I employ any person to transact my business for me, or perform any work, the law implies that I undertook or assumed to pay him so much as his labour deserved. And if I neglect to make him amends, he has a re medy for this injury by bringing his action on the case upon this implied assumpsit; wherein he is at liberty to suggest that I promised to pay him so much as he reasonably deserved, and then to aver that his trouble was really worth such a particular sum, which the defendant has omit. [163] ted to pay. But this valuation of his trouble is submitted to the determination of a jury; who will assess such a sum in damages as they think he really merited. This is called an assumpsit on a quantum meruit.

2. There is also an implied assumpsit on a quantum valebat, which is very similar to the former, being only where one takes up goods or wares of a tradesman, without expressly agreeing for the price. There the law concludes, that both parties did intentionally agree, that the real value of the goods should be paid; and an action on the case may be brought ac. cordingly, if the vendee refuses to pay that value.

3. A third species of implied assumpsits is when one has had and received money belonging to another, without any valuable consideration

ra See Book II. ch. 29.

a 2 Hawk. P. C. 268.

o Ff. 47. 15. 3.

Under the black act, 9 Geo. I. c. 22., the maliciously killing, &c. cattle, or destroying trees, is felony, and the hundred is liable, but the malice must be to the owner; and therefore, where some unknown person maliciously set fire to A.'s plantations, with intent to injure him, and the fire extended and burnt B.'s plantation, it was held, that the latter was without remedy against the hundred. 3 B. & C. 248. Chitty

(17) And the defendant, in such case of collusion, is liable to two years' imprisonment VOL. II.

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