any that belong to the body, or an amercement set in a court-leet or courtbaron upon any of the suitors to the court (for otherwise 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 17 legislature, and pay the forfeiture incurred to such persons as the [*160] law requires. The usual application of this forfeiture is either to the party aggrieved, 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 (21). But more usually, these forfeitures 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 given 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 action, because it is brought by a person, "qui tam pro domino rege, &c. quam pro se ipso in hac parte sequitur." If the king therefore 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 sharp-sighted prince in penal laws, 4 Hen. VII. c. 20. which enacts that no recovery, otherwise than by verdict, obtained by collusion in an action popular, shall be a bar to any other action prosecuted bona fide. A provision that seems [*161] 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 statute; but from natural reason, and the just construction of law. Which class extends to all presumptive undertakings or assumpsits; which though (h) Law of nisi prius, 155. (i) 5 Rep. 64. Hob. 279. (k) 13 Edw. I. c. 1. (1) 27 Eliz. c. 13. 29 Car. II. c. 7. 8 Geo. II. c. 16. 22 Geo. II. c. 24. (21) See 3 Geo. IV. c. 3, and 7 & 8 Geo. IV. c. 3, and book 4, p. 293. never perhaps actually made, yet constantly arise from the general 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 a 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 remedy 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 omitted 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 accordingly, if the vendee refuses to pay that value. 3. A third species of implied assumpsits is when one has had [162] and received money belonging to another, without any valuable consideration given on the receiver's part: for the law construes this to be money had and received for the use of the owner only; and implies that the person so receiving promised and undertook to account for it to the true proprietor. And, if he unjustly detains it, an action on the case lies against him for the breach of such implied promise and undertaking; and he will be made to repay the owner in damages, equivalent to what he has detained in violation of such his promise. This is a very extensive and beneficial remedy, applicable to almost every case where the defendant has received money which ex aequo et bono he ought to refund. It lies for money paid by mistake or on a consideration which happens to fail, or through imposition, extortion, or oppression, or where any undue advantage is taken of the plaintiff's situation (p). 4. Where a person has laid out and expended his own money for the use of another, at his request, the law implies a promise of repayment, and an action will lie on this assumpsit (q) (22). mise. 5. Likewise, fifthly, upon a stated account between two merchants, or other persous, the law implies that he against whom the balance appears has engaged to pay it to the other; though there be not any actual proAnd from this implication it is frequent for actions on the case to be brought, declaring that the plaintiff and defendant had settled their accounts together, insimul computassent (which gives name to this species of assumpsit), and that the defendant engaged to pay the plaintiff the balance, but has since neglected to do it. But if no account has been made up, then the legal remedy is by bringing a writ of account, de computo (r); com (p) 4 Burr. 1012. (q) Carth. 446. 2 Keb. 99. (22) If a surety in a bond pays the debt of the principal, he may recover it back from the principal in an action of assumpsit, for so much money paid and advanced to his use; yet in ancient times this action could not be maintained; and it is said, that the first case of the (r) F. N. B. 116. kind in which the plaintiff succeeded, was tried before the late Mr. J. Gould, at Dorchester. But this is perfectly consistent with the equitable principles of an assumpsit. 2 T. R. 105. manding the defendant to render a just account to the plaintiff, [*163] or shew the court good cause to the contrary. In this action, if the plaintiff succeeds, there are two judgments: the first is, that the defendant do account (quod computet) before auditors appointed by the court; and, when such amount is finished, then the second judgment is, that he do pay the plaintiff so much as he is found in arrear. This action, by the old common law (s), lay only against the parties themselves, and not their executors; because matters of account rested solely on their own knowledge. But this defect, after many fruitless attempts in parliament, was at last remedied by statute 4 Ann. c. 16. which gives an action of account against the executors and administrators (23).18 But however it is found by experience, that the most ready and effectual way to settle these matters of account is by bill in a court of equity, where a discovery may be had on the defendant's oath, without relying merely on the evidence which the plaintiff may be able to produce. Wherefore actions of account, to compel a man to bring in and settle his accounts, are now very seldom used; though, when an account is once stated, nothing is more common than an action upon the implied assumpsit to pay the balance. 6. The last class of contracts, implied by reason and construction of law, arises upon this supposition, that every one who undertakes any office, employment, trust, or duty, contracts with those who employ or entrust him, to perform it with integrity, diligence, and skill. And, if by his want of either of those qualities any injury accrues to individuals, they have therefore their remedy in damages by a special action on the case. A few instances will fully illustrate this matter. If an officer of the public is guilty of neglect of duty, or a palpable breach of it, of non-feasance or of mis-feasance; as, if the sheriff does not execute a writ sent to him, or if he wilfully makes a false return thereof; in both these cases the party aggrieved shall have an action on the case, for damages to be assessed by a jury (t). If a sheriff or gaoler suffers a prisoner, who is taken up[*164] on mesne process (that is, during the pendency of a suit), to escape, he is liable to an action on the case (u). But if, after judgment, a gaoler or a sheriff permits a debtor to escape, who is charged in execution for a certain sum; the debt immediately becomes his own, and he is compellable by action of debt, being for a sum liquidated and ascertained, to satisfy the creditor his whole demand: which doctrine is grounded (w) on the equity of the statute of Westm. 2. 13 Edw. I. c. 11, and 1 Ric. II. c. 12. An advocate or attorney that betray the cause of their client, or, being retained, neglect to appear at the trial, by which the cause miscarries, are liable to an action on the case, for a reparation to their injured client (x). There is also in law always an implied contract with a common inn-keeper, to secure his guest's goods in his inn; with a common carrier, or bargemaster, to be answerable for the goods he carries; with a common farrier, that he shoes a horse well, without laming him; with a common taylor, or other workman, that he performs his business in a workmanlike manner; in which, if they fail, an action on the case lies to recover damages for such breach of their general undertaking (p). But if I employ a person to transact any of these concerns, whose common pro(w) Bro. Abr. t. parliament, 19. 2 Inst. 382. (x) Finch. L. 183. (s) Co. Litt. 90. (t) Moor. 431. 11 Rep. 99. (n) Cro. Eliz. 625. Comb. 69. (y) 11 Rep. 54. 1 Saund. 324. (23) See 2 R. S. 113, § 2. (18) See Hov. n. (18) at the end of the Vol. B III. fession and business it is not, the law implies no such general undertaking; but, in order to charge him with damages, a special agreement is required. Also, if an inn-keeper, or other victualler, hangs out a sign and opens his house for travellers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveller (z). If any one cheats me with false cards or dice, or by false weights and measures, or by selling me one commodity for another, an action on the case also lies against him for damages, upon the contract which the law always implies, that every transaction is fair and honest (a). In contracts likewise for sales, it is constantly understood that the seller undertakes that the *commodity he sells is his own (24); [165] and if it proves otherwise, an action on the case lies against him, to exact damages for this deceit. In contracts for provisions, it is always implied that they are wholesome; and if they be not, the same remedy may be had. Also if he, that selleth any thing, doth upon the sale warrant it to be good, the law annexes a tacit contract to his warranty, that if it be not so, he shall make compensation to the buyer: else it is an injury to (z) 1 Vent. 333. (24) As to warranties in general, see Bac. Ab. Actions on the Case, E. A warranty on the sale of a personal chattel, as to the right thereto, is generally implied, ante, 2 book, 451. 3 Id. 166. 3 T. R. 57. Peake C. N. P. 94. Cro. Jac. 474. 1 Rol. Ab. 90. 1 Salk. 210. Doug. 18; but not as to the right of real property (Dougl. 654. 2 B. & P. 13 3 B. & P. 166.) if a regular conveyance has been executed. 6 T. R. 606. Nor is a warranty of soundness, goodness, or value of a horse, or other personalty, implied, 3 Campb. 351. 2 East, 314. 448. ante, 2 book, 451. And see further, 2 Rol. Rep. 5. F. N. B. 94. acc. Wooddes. 415. 3 Id. 199. cont.; and if a ship be sold, with all faults, the vendor will not be liable to an action in respect to latent defects which he knows of, unless he used some artifice to conceal them from the purchaser. 3 Camp. 154. 506. But if it is the usage of the trade to specify defects (as in case of sales of drugs, if they are sea damaged), and none are specified, an implied warranty arises, 4 Taunt. 847; and a warranty may be implied from the production of a sample, in a parol sale by sample, 4 Camp. 22. 144. 169. 4 B. & A. 387. 3 Stark. 32. and see notes; and if the bulk of the goods do not correspond with the sample, it would be a breach of the warranty. If the contract describe the goods as of a particular denomination, there is an implied warranty, that they shall be of a merchantable quality of the denomination mentioned in the contract. 4 Camp. 144. 3 Chit. Com. Law, 303. 1 Stark. 504. 4 Taunt. 853. 5 B. & A. 240. In all contracts for the sale of provisions, there is an implied contract that they shall be wholesome, 1 Stark. 384. 2 Camp. 391. 3 Camp. 286, An implied warranty arises in the sale of goods where no opportunity of an inspection is given, 4 Camp. 144. 169. 6 Taunt. 108; and if goods are ordered to be manufactured, a stipulation that they shall be proper is implied, 4 Camp. 144. 6 Taunt 108, especially if for a foreign VOL. II. 20 (a) 10 Rep. 56. market. 4 Camp. 169. 5 Taunt. 108. As to what is an express warranty, see 3 Chit. Com. Law, 305. Where a horse has been warranted sound, any infirmity rendering it unfit for immediate use, is an unsoundness. 1 Stark. 127. The question of unsoundness is for the opinion of a jury. 7 Taunt. 153. It is not necessary for the purchaser to return the horse, unless it be expressly stipulated that he should do so. 2 Hen. Bla. 573. 2 T. R. 745. If not so stipulated, an action for the breach of warranty may be supported without returning the horse, or even giving notice of the unsoundness, and although the purchaser have re-sold the horse. 1 Hen. Bla. 17. 1 T. R. 136. 2 T. R. 745. But unless the horse be returned as soon as the defect is discovered, or if the horse has been long worked, the purchaser cannot recover back the purchase money on the count for money had and received, 1 T. R. 136. 5 East, 449. 7 East, 274. 2 Camp. 410. 1 New. Rep. 260; and in all cases the vendee should object within a reasonable time, 1 J. B. Moore, 166; and in these cases, or when the purchaser has doctored the horse, he has no defence to an action by the vendor for the price, but must proceed in a cross action on the warranty, 1 T. R. 136. 5 East, 449.7 Id. 274._2 Camp. 410. 1 N. R. 260. 3 Esp. Rep. 82. 4 Esp. Rep. 95; and in these cases, if the vendee has accepted a bill, or given any other security, it should seem that the breach of warranty is no defence to an action thereon, but he must proceed by cross action, 2 Taunt. 2. 1 Stark. 51. 3 Camp. 38. S. C. 14 East, 486. 3 Stark. 175; but it would be otherwise if the vendee entirely repudiated the contract, 2 Taunt. 2. as if he, in the first instance, on discovery of the breach of warranty, returned or tendered back the horse. 2 Taunt. 2. and see 14 East, 484. 3 Campb. 38. Peake's C. N. P. 38. For what damage defendant is liable in this action, see 2 J. B. Moore, 106. good faith, for which an action on the case will lie to recover damages (b). The warranty must be upon the sale; for if it be made after, and not at the time of the sale, it is a void warranty (c): for it is then made without any consideration; neither does the buyer then take the goods upon the credit of the vendor. Also the warranty can only reach to things in being at the time of the warranty made, and not to things in futuro: as, that a horse is sound at the buying of him, not that he will be sound two years hence (25). But if the vendor knew the goods to be unsound, and hath used any art to disguise them (d), or if they are in any shape different from what he represents them to be to the buyer, this artifice shall be equivalent to an express warranty, and the vendor is answerable for their goodness. A general warranty will not extend to guard against defects that are plainly and obviously the object of one's senses, as if a horse be warranted perfect, and wants either a tail or an ear, unless the buyer in this case be blind. But if cloth is warranted to be of such a length, when it is not, there an action on the case lies for damages; for that cannot be discerned by sight, but only by a collateral proof, the measuring it (e). Also if a horse is warranted sound, and he wants the sight of an eye, though this seems to be the object of one's senses, yet as the discernment of such defects is frequently matter of skill, it hath been held that an action on the case lieth to recover damages for this imposition (f). Besides the special action on the case, there is also a peculiar [*166] remedy, entitled an action of deceit (g),19to give damages *in some . particular cases of fraud; and principally where one man does any thing in the name of another, by which he is deceived or injured (h) ; as if one brings an action in another's name, and then suffers a nonsuit, whereby the plaintiff becomes liable to costs: or where one obtains or suffers a fraudulent recovery20 of lands, tenements, or chattels, to the prejudice of him that hath right. As when by collusion the attorney of the tenant makes default in a real action,21or where the sheriff returns that the tenant was summoned when he was not so, and in either case he loses the land, the writ of deceit lies against the demandant, and also the attorney or the sheriff and his officers; to annul the former proceedings, and recover back the land (i) (26). It also lies in the cases of warranty before-mentioned, and other personal injuries committed contrary to good faith22 and honesty (k). But an action on the case, for damages, in nature of a writ of deceit, is more usually brought upon these occasions (7). And indeed it is the only (m) remedy for a lord of a manor, in or out of ancient demesne, to reverse a fine or recovery had in the king's courts of lands lying within his jurisdiction; which would otherwise be thereby turned into frank fee. And this may be brought by the lord against the parties and cestuy que use of such fine or recovery; and thereby he shall obtain judgment not only (b) F. N. B. 94. (c) Finch. L. 189. (25) There seems to be no reason or principle, why, upon a sufficient consideration, an express warranty that a horse should continue sound for two years, should not be valid. Lord Mansfield declared, in a case in which the sentence in the text was cited, "there is no doubt but you may warrant a future event." Doug. 735. (26) There seems to be no such action in New-York. (19) See H n. (19) end of Vol. B. III. (20) Ib. (20) B. III. (21) Ib. (21) B. III. (22) Ib. (22) B.IIL. |