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on what is called an indebitatus assumpsit, which is not brought to compel a specific performance of the contract, but to recover damages for [*155] its *non-performance, the implied assumpsit, and consequently the damages for the breach of it, are in their nature indeterminate; and will therefore adapt and proportion themselves to the truth of the case which shall be proved, without being confined to the precise demand stated in the declaration. For if any debt be proved, however less than the sum demanded, the law will raise a promise pro tanto, and the damages will of course be proportioned to the actual debt. So that I may declare that the defendant, being indebted to me in 301. undertook or promised to pay it, but failed; and lay my damages arising from such failure at what sum I please and the jury will, according to the nature of my proof, allow me either the whole in damages, or any inferior sum. And, even in actions of debt, where the contract is proved or admitted, if the defendant can shew that he has discharged any part of it, the plaintiff shall recover the residue (v).

The form of the writ of debt is sometimes in the debet and detinet, and sometimes in the detinet only: that is, the writ states, either that the defendant owes and unjustly detains the debt or thing in question, or only that he unjustly detains it. It is brought in the debet as well as detinet, when sued by one of the original contracting parties who personally gave the credit, against the other who personally incurred the debt, or against his heirs, if they are bound to the payment; as by the obligee against the obligor, the landlord against the tenant, &c. But, if it be brought by or against an executor for a debt due to or from the testator, this not being his own debt, shall be sued for in the detinet only (w). So also if the action be for goods, or corn, or a horse, the writ shall be in the detinet only; for nothing but a sum of money, for which I (or my ancestors in my name) have personally contracted, is properly considered as my debt. And indeed a writ of debt in the detinet only, for goods and chattels, is neither more nor less than a mere writ of detinue (15); and is followed by the very same judgment (x).

2. A covenant also, contained in a deed, to do a direct act or to omit one, is another species of express contracts, the violation or breach of which is

a civil injury. As if a man covenants to be at York by such a [*156] day, or not to exercise a *trade in a particular place, and is not at

York at the time appointed, or carries on his trade in the place forbidden, these are direct breaches of his covenant; and may be perhaps greatly to the disadvantage and loss of the covenantee. The remedy for this is by a writ of covenant (y): which directs the sheriff to command the defendant generally to keep his covenant with the plaintiff, (without specifying the nature of the covenant), or shew good cause to the contrary: and if he continues refractory, or the covenant is already so broken that it cannot now be specifically performed, then the subsequent proceedings set forth with precision the covenant, the breach, and the loss which has happened thereby; whereupon the jury will give damages, in proportion to the injury sustained by the plaintiff, and occasioned by such breach of the defendant's contract.

There is one species of covenant, of a different nature from the rest; and (v) 1 Roll. Rep. 257. Salk. 664. (w) F. N. B. 119.

(2) Rast. Entr. 174.
(y) F. N. B. 145.

(15) See note 10, p. 152. ante.

that is a covenant real, to convey or dispose of lands, which seems to be partly of a personal and partly of the real nature (z). For this the remedy is by a special writ of covenant, for a specific performance of the contract concerning certain lands particularly described in the writ. It therefore directs the sheriff' to command the defendant, here called the deforciant, to keep the covenant made between the plaintiff and him concerning the identical lands in question: and upon this process it is that fines of land are usually levied at common law (a),15the plaintiff, or person to whom the fine is levied, bringing a writ of covenant, in which he suggests some agreement to have been made between him and the deforciant, touching those particular lands, for the complexion of which he brings this action. And, for the end of this supposed difference, the fine or finalis concordia is made, whereby the deforciant (now called the cognizor) acknowledges the tenements to be the right of the plaintiff, now called the cognizee (16). And moreover, as leases for years were formerly considered only as contracts (b) or covenants for the enjoyment of the rents and profits, and not as the conveyance of any real interest in the land, the [*157] ancient remedy for the lessee, if ejected, was by a writ of covenant against the lessor, to recover 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 (17).

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. And 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 (18).

(z) Hob. on F. N. B. 146

(a) See book II. ch. 21.

(b) See book II. ch. 9.

(c) Bro. Abr. t. covenant, 33. F. N. B. 476. (d) Co. Litt. 215. Moor. 876. Cro. Jac. 145.

(16) Fines are now abolished in New-York. described, or even alluded to the considera(2 R. S. 343, § 24.)

17) See 1 R. S. 747, § 23, 24. 18) "It is worthy of remark, that the jearned Commentator has not either named, (15) See Hov. n. (15) at

tion 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 the end of the Vol. B. III.

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 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 sta

tute of frauds and perjuries, 29 Car. II. c. 3. enacts, that in the [*158] five *following cases no verbal promise shall be sufficient to ground an action upon, but 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 (19), (20).

(e) 4 Rep. 99.

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.

per tot.

(19) These provisions in the statute have produced many decisions, both in the courts of law and equity. See Chitty's Com. L. 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

(20) In the text is omitted a part of the act which allows other circumstances to dispense with writing in the case of personal goods, viz. if the buyer accept and receive part of the goods, or the evidences, or some of them, of things in action: or if he, at the time, pay some part of the purchase money. (2 R. S. 135, 3.) The Revised Statutes of NewYork expressly require the memorandum to be subscribed by the parties to be charged, or their agent: see also id. 135, 8, as to contracts for the sale of lands. The English act

(f) See book II. ch. 30.


writing, otherwise it is void. 2 T. R. 80.
H. Bl. Rep. 120. 1 Bos. & Pul. 158.
tual 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 there-
of, 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
uses the word "signed" where ours uses
"subscribed."-In other respects they are
alike. Ours was probably intended as a repeal
of the decisions construing a memorandum
with a man's name written on it, a signature,
though not written at the foot of the memo-

Leases, or contracts for leases, for a longer period than one year in New-York, must be in writing. (Id. 134, ◊ 6: 135, § 8.)

See as to executors, 2 R. S. 113, § 1.

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 fundamental constitution of government, to which every man is a contracting party. And thus it is that every person is bound and hath virtually 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 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. that if he hath once obtained a judgment against another for a certain sum, and neglects to take out execution *thereupon, he [*159] may afterwards bring an action of debt upon this judgment (g),16 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.

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 by-laws and private ordinances of a corporation upon

(g) Roll. Abr. 600, 601.

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 the 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. 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 money, or by entering and expending money upon the estate, for such acis 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 Woodd. Lect. lvii. and Fonblanque Tr. of Eq. b. 1. c. 3. s. 8 & 9. where this subject is fully and learnedly discussed.

(16) See Hov. n. (16) at the end of the Vol. B. III.

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 (¿).


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 [*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 (o).

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.

(1) 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.
(m) See book II. ch. 29.
(n) 2 Hawk. P. C. 268.
(0) Ff. 47. 15. 3.

(21) See 3 Geo. IV. c. 3, and 7 & 8 Geo. IV. c. 3, and book 4, p. 293.

(17) See Hov. n. (17) at the and of the Vol. B. III.

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