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where the defendant has received money which ex æquo 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)

5. *Likewise, fifthly, upon a stated account between two merchants, *164] or other persons, the law implies that he, against whom the balance appears, has engaged to pay it to the other; though there be not any actual promise. And 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) commanding the defendant to render a just account to the plaintiff, or show 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 account 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, (8) 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 Anne, c. 16, which gives an action of account against the executors and administrators. 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.

*165] 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 intrust 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 upon 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

(P) 4 Burr. 1012.

(9) Carth. 446. 2 Keb. 99.

F. N. B. 116.

(•) Co. Litt. 90.

() Moor. 431. 11 Rep. 99.

(*) Cro. Eliz. 625. Comb. 69.
(w) Bro. Abr. tit. Parliament, 19. 2 Inst. 382.

"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 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.-CHITTY.

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 tailor, 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.(y) But if I employ a [*166 person to transact any of these concerns, whose common profession 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. (2) 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;" and if it proves otherwise, an action on the case lies against him, to exact damages for this deceit.

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16 The authority cited for this position falls short of maintaining it to its full extent. Finch merely lays down the law in the case of an attorney for the tenant in a real action making default; and F. N. B. 96, which is his authority, goes no further. As the advocate can maintain no action for his fees, (see ante, p. 28,) there would be some hardship in exposing him to an action for what his client might consider want of proper zeal, industry, or knowledge in the conduct of his cause. In two cases (Fell vs. Brown and Turner vs. Phillips, Peake's N. P. C. 131, 166) lord Kenyon, at Nisi Prius, held such actions not to be maintainable.-COLERidge.

In the United States there is no distinction between attorneys and advocates. The same persons fulfil the duties of both. Hence no difference is made between their right to recover compensation for services in the one capacity or the other. The attorney is liable for want of ordinary care and skill. When he disobeys the lawful instructions of his client, and a loss ensues, for that loss he is responsible. But a client has no right to control his attorney in the due and orderly conduct of a suit; and it is his duty to do what the court would order to be done, though his client instruct him otherwise. Gilbert vs. Williams, 8 Mass. 57. Holmes vs. Peck, 1 Rhode Island, 245. Cox vs. Sullivan, 7 Georgia, 144. Cox vs. Livingston, 2 W. & S. 103. Wilcox vs. Plummer, 4 Peters, 172. Anon., 1 Wendell, 108.-SHARSWOOD.

17 As to warranties in general, see Bac. Abr. 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 Roll. Abr. 90. 1 Salk. 210. Doug. 18;) but not as to the right of real property, (Doug. 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 Camp. 351. 2 East, 314, 448. Ante, 2 book, 451; and see further, 2 Roll. 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 purchasor. 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 ny 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 im plied contract that they shall be wholesome. 1 Stark. 384. 2 Camp. 391. 3 Camp. 286

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 'o be good, the law annexes a tacit contract to his warranty, that if it be not so, he snall make compensation to the buyer; else it is an injury to 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.18 But if the vendor knew the goods **to be unsound, and hath used any art [**165 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 mea suring 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 or the case lieth to recover damages for this imposition. (f)

Besides the special action on the case, there is also a peculiar remedy, entitled an action of deceit ; (g) to 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

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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 manufac tured, a stipulation that they shall be proper is implied, (4 Camp. 144. 6 Taunt. 108,) especially if for a foreign 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 purchasor 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 purchasor 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 purchasor cannot recover back the purchase-money on the count for money had and received, (1 T. R. 136. 5 East. 449. 1 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 purchasor 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 Camp. 38. Peake's C. N. P. 38. For what damage defendant is liable in this action, see 2 J. B. Moore, 106.-CHITTY.

18 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.-CHRISTIAN.

name, and then suffers a nonsuit, whereby the plaintiff becomes liable to costs; or where one obtains or suffers a fraudulent recovery 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, or 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) It also lies in the cases of warranty before mentioned, and other personal injuries committed contrary to good faith 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. (1) And indeed it is the only(m) **remedy for a lord of a manor, in or out of antient demesne, to reverse [**166 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 for damages, (which are usually remitted,) but also to recover his court, and jurisdiction over the lands, and to annul the former proceedings.(n)


Thus much for the non-performance of contracts, express or implied; which includes every possible injury to what is by far the most considerable species of personal property, viz., that which consists in action merely, and not in possession. Which finishes our inquiries into such wrongs as may be offered to personal property, with their several remedies by suit or action.



*I COME now to consider such injuries as affect that species of pro

perty which the laws of England have denominated real; as being of a [*167

more substantial and permanent nature than those transitory rights of which personal chattels are the object1

() Booth, Real Actions, 251. Rast. Entr. 221, 222. See page 405. (*) F. N. B. 98.

(1) Booth, 253. Co. Entr. 8.
(m)3 Lev. 419.

(") Rast. Entr. 100, b. 3 Lev. 415. Lutw. 711, 749.

19 The writ of deceit was abolished by the statute 3 & 4 Will. IV. c. 27.-KERR. 1 "The different degrees of title which a person dispossessing another of his lands acquires in them in the eye of the law, (independently of any anterior right,) according to the length of time and other circumstances which intervene from the time such dispossession is made, form different degrees of presumption in favour of the title of the dispossessor; and in proportion as that presumption increases, his title 's strengthened. The modes by which the possession may be recovered vary; and more, or rather different, proof is required from the person dispossessed to establish his title to recover. Thus, if A. is disseised by B., while the possession continues in B. it is a mere naked possession, unsupported by any right, and A. may restore his own possession, and put a total end to the possession of B., by an entry on the lands, without any previous action. But if B. dies, the possession descends on the heir by act of law. In this case the heir comes to the land by a lawful title, and acquires in the eye of the law an apparent right of possession, which is so far good against the person disseised that he has lost his right to recover the possession by entry, and can only recover it by an action at law. The actions used in these cases are called possessory actions, and the original writs by which the proceedings upon them are instituted are called writs of entry. But if A. permits the possession to be withheld from him beyond a certain period of time without claiming it, or suffers judgment in a possessory action to be given against him, by default or upon the merits,-in all these cases B.'s title, in the eye of the law, is strengthened, and A. can no longer recover by a possessory action, and his only remedy then is by an action on the right. These last actions are called droiturel actions, in contradistinction to possessory actions. They are the ultimate resort of the person disseised, so that if he fails to bring his writ of right

Real injuries, then, or injuries affecting real rights, are principally six:1. Ouster; 2. Trespass; 3. Nuisance; 4. Waste; 5. Subtraction; 6. Dis turbance.

Ouster, or dispossession, is a wrong or injury that carries with it the amotion of possession; for thereby the wrong-doer gets into the actual occupation of the land or hereditament, and obliges him that hath a right, to seek his legal remedy in order to gain possession and damages for the injury sustained. And such ouster, or dispossession, may either be of the freehold, or of chattels real. Ouster of the freehold is effected by one of the following methods:1. Abatement; 2. Intrusion; 3. Disseisin; 4. Discontinuance; 5. Deforcement. All of which, in their order, and afterwards their respective remedies, will be considered in the present chapter.

1. And first, an abatement is where a person dies seised of an inheritance and before the heir or devisee enters, a stranger *who has no right *168] makes entry and gets possession of the freehold. This entry of him is called an abatement, and he himself is denominated an abator.(a) It is to be observed that this expression of abating, which is derived from the French, and signifies to quash, beat down, or destroy, is used by our law in three senses. The first, which seems to be the primitive sense, is that of abating or beating down a nuisance, of which we spoke in the beginning of this book; (b) and in a like sense it is used in statute Westm. 1, 3 Edw. I. c. 17, where mention is made of abating a castle or fortress; in which case it clearly signifies to pull it down and level it with the ground. The second signification of abatement is that of abating a writ or action, of which we shall say more hereafter; here it is taken figuratively, and signifies the overthrow or defeating of such writ by some fatal exception to it. The last species of abatement is that we have now before us; which is also a figurative expression, to denote that the rightful possession or freehold of the heir or devisee is overthrown by the rude intervention of a stranger.

This abatement of a freehold is somewhat similar to an immediate occupancy

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within the time limited for the bringing of such writ, he is remediless, and the title of the dispossessor is complete. The original writs by which droiturel actions are instituted are called writs of right. The dilatoriness and niceties in these processes introduced the writ of assize. The invention of this proceeding is attributed to Glanville, chief justice to Henry II. See Mr. Reeves's History of the English Law, part 1, ch. 3. It was found so convenient a remedy that persons, to avail themselves of it, frequently supposed or admitted themselves to be disseised by acts which did not, in strictness, amount to a disseisin. This disseisin, being such only by the will of the party, is called a disseisin by election, in opposition to an actual disseisin: it is only a disseisin as between the disseisor and disseisee, the disseisee still continuing the freeholder as to all persons but the disseisor. The old books, particularly the reports of assize, when they mention disseisins, generally relate to those cases where the owner admits himself disseised. See 1 Burr. 111; and see Bract. 1, b. 4, cap. 3. As the processes upon writs of entry were superseded by the assize, so the assize and all other real actions have been since superseded by the modern process of ejectment. This was introduced as a mode of trying titles to lands in the reign of Henry VII. From the ease and expedition with which the proceedings in it are conducted, it is now become the general remedy in these cases. Booth, who wrote about the end of the last century, mentions real actions as then worn out of use. It is rather singular that this should be the fact, as many cases must frequently have occurred in which a writ of ejectment was not a sufficient remedy. Within these few years past, some attempts have been made to revive real actions; and the most remarkable of these are the case of Tissen vs. Clarke, reported in 3 Wils. 419, 541, and that of Carlos & Shuttleworth vs. Lord Dormer. The writ of summons in this last case is dated the 1st day of December, 1775. The summons to the four knights to proceed to the election of the grand assize is dated the 22d day of May, 1780. To this summons the sheriff made his return; and there the matter rested. The last instance in which a real action was used is the case of Sidney vs. Perry. All these were actions on the right. The part of Sir William Blackstone's Commentary which treats upon real actions is not the least valuable part of that most excellent work." See Co. Litt. 239, a., note 1. In M. T. 1825, a writ of right stood for trial in the court of Common Pleas; but, the four knights summoned for the purpose not appearing, the case was adjourned to the next term.-CHITTY.

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