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formado por un único campo de gules en que aparecen tres leones pasantes y
contorneados de oro, lampasados y armados o uñados de azur.
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AND here again we must follow our former division1 of property into personal and real: personal, which consists in goods, money, and all other moveable chattels, and things thereunto incident; a property, which may attend a man’s person wherever he goes, and from thence receives its denomination: and real property, which consists of such things as are permanent, fixed, and immoveable; as lands, tenements, and hereditaments of all kinds, which are not annexed to the person, nor can be moved from the place in which they subsist.
FIRST then we are to consider the injuries that may be offered to the rights of personal property; and, of these, first the rights of personal property in possession, and then those that are in action only.2
I. THE rights of personal property in possession are liable to two species of injuries: the amotion [removal] or deprivation of that possession; and the abuse or damage of the chattels, while the possession continues in the legal owner. The former, or deprivation of possession, is also divisible into two branches; the unjust and unlawful taking them away; and the unjust detaining them, though the original taking might be lawful.
1. AND first of an unlawful taking. The right of property in all external things being solely acquired by occupancy, as has been formerly stated, and preserved and transferred by grants, deeds, and wills, which are a continuation of that occupancy; it follows as a necessary consequence, that when I once have gained a rightful possession of any goods or chattels, either by fraud or force dispossesses me of them is guilty of a transgression against the law of society, which is a kind of secondary law of nature. For there must be an end of all social commerce between man and man, unless private possessions be secured from unjust invasions: and, if an acquisition of goods by either force or fraud were allowed to be a sufficient title, all property would soon be confined to the most strong, or the most cunning; and the weak and simpleminded part of mankind (which is by far the most numerous division) could never be secure of their possessions.
THE wrongful taking of goods being thus most clearly an injury, the next consideration is, what remedy the law of England has given for it. And this is, in the first place, the restitution of the goods themselves so wrongfully taken, with damages for the loss sustained by such unjust invasion; which is effected by action of replevin: an institution, which the mirror3 ascribes to Glanvil, chief justice to king Henry the second. This obtains only in one instance of an unlawful taking, that of a wrongful distress; and this and the action of detinue (of which I shall presently say more) are almost the only actions, in which the actual specific possession of the identical personal chattel is restored to the proper owner. For things personal are looked upon by the law as of a nature so transitory and perishable, that it is for the most part impossible either to ascertain their identity, or to restore them in the same condition as when they came to the hands of the wrongful possessor. And, since it is a maxim that “lex neminem cogit ad vana, seu impossibilia” [“the law compels no one to do things which are either useless or impossible”], it therefore contents itself in general with restoring, not the thing itself, but a pecuniary equivalent to the party injured; by giving him a satisfaction in damages. But in the case of a distress, the goods are from the first taking in the custody of the law, and not merely in that of the distrainor; and therefore they may not only be identified, but also restored to the first possessor, without any material change in their condition. And, being thus in the custody of the law, the taking them back by force is looked upon as an atrocious injury, and denominated a rescous, for which the distrainor has a remedy in damages, either by writ of rescous,4 in case they were going to the pound, or by writ de parco fracto, or pound-breach,5 in case they were actually impounded. He may also at his option bring an action on the case for this injury: and shall therein, if the distress were taken for rent, recover treble damages.6 The term, rescous, is likewise applied to the forcible delivery so a defendant, when arrested, from the officer who is carrying him to prison. In which circumstances the plaintiff has a similar remedy by action on the case, or of rescous:7 or, if the sheriff makes a return of such rescous to the court out of which the process issued, the rescuer will be punished by attachment.8
AN action of replevin, the regular way of contesting the validity of the transaction, is founded, I said, upon a distress taken wrongfully and without sufficient cause: being a re-delivery of the pledge,9 or thing taken in distress, to the owner; upon his giving security to try the right of the distress, and to restore it if the right be adjudged against him.10 And formerly, when the party distrained upon intended to dispute the right of the distress, he had no other process by the old common law than by a writ of replevin, replegiari facias [cause to be replevied];11 which issued out of chancery, commanding the sheriff to deliver the distress to the owner, and afterwards to do justice in respect of the matter in dispute in his own county-court. But this being a tedious method of proceeding, the beasts or other goods were long detained from the owner, to his great loss and damage.12 For which reason the statute of Marlbridge13 directs, that (without suing a writ out of the chancery) the sheriff, immediately upon complaint to him made, shall proceed to replevy the goods. And, for the greater ease of the parties, it is farther provided by statute 1 P. & M. c. 12. that the sheriff shall make at least four deputies in each county, for the sole purpose of making replevins. Upon application therefore, either to the sheriff, or one of his said deputies, security is to be given, in pursuance of the statute of Westm. 2. 13 Edw. I. c. 2. 1. That the party replevying will pursue his action against the distrainor, for which purpose he puts in plegios de prosequendo, or pledges to prosecute; and, 2. That if the right be determined against him, he will return the distress again; for which purpose he is also bound to find plegios de retorno habendo [pledges to have the return]. Besides these pledges, which are merely discretionary in the sheriff, the statute 11 Geo. II. c. 19. requires that the officer, granting a replevin on a distress for rent, shall take a bond with two sureties in a sum of double the value of the goods distrained; which bond shall be assigned to the avowant of person making cognizance, on request made to the sheriff; and, if forfeited, may be sued in the name of the assignee. And certainly, as the end of all distresses is only to compel the party distrained upon to satisfy the debt or duty owing from him, this end is as well answered by such sufficient sureties as by retaining the very distress, which might frequently occasion great inconvenience to the owner; and that the law never wantonly inflicts. The sheriff, on receiving such security, is immediately, by his officers, to cause the chattels taken in distress to be restored into the possession of the party distrained upon; unless the distrainor claims a property in the goods so taken. For if, by this method of distress, the distrainor happens to come again into possession of his own property in goods which before he had lost, the law allows him to keep them, without any reference to the manner by which he thus has regained possession; being a kind of personal remitter.14 If therefore the distrainor claims any such property, the party replevying must sue out a writ de proprietate probanda [for proving ownership], in which the sheriff is to try, by an inquest, in whom the property previous to the distress subsisted.15 And if it be found to be in the distrainor, the sheriff can proceed no farther; but must return the claim of property to the court of king’s bench or common pleas, to be the farther prosecuted, if thought advisable, and there finally determined.16
BUT if no claim of property be put in, or if (upon trial) the sheriff’s inquest determines it against the distrainor; then the sheriff is to replevy the goods (making use of even force, if the distrainor makes resistance17) in case the goods be found within his county. But if the distress be carried out of the county, or concealed, then the sheriff may return that the goods, or beasts, are eloigned, elongata, carried to a distance, to places to him unknown: and thereupon the party replevying shall have a writ of capias in withernam [take in reprisal], or in vetito namio; a term which signifies a second or reciprocal distress,18 in lieu of the first which was eloigned. It is therefore a command to the sheriff to take other goods, of the distrainor, in lieu of the distress formerly taken, and eloigned, or withheld from the owner.19 So that here is now distress against distress; one being taken to answer the other, by way of reprisal,20 and as a punishment for the illegal behavior of the original distrainor. For which reason goods taken in withernam cannot be replevied, till the original distress is forth-coming.21
BUT, in common cases, the goods are delivered back to the party replevying, who is then bound to bring his action of replevin; which may be prosecuted in the county court, be the distress of what value it may.22 But either party may remove it to the superior courts; the plaintiff at pleasure, the defendant upon reasonable cause:23 and also if in the course of proceeding any right of freehold comes in question, the sheriff can proceed no farther;24 so that it is usual to carry it up in the first instance to the courts of Westminster-hall. Upon this action brought, the distrainor, who is now the defendant, makes avowry; that is, he avows taking the distress in his own right, or the right of his wife;25 and sets forth the season of it, as for rent arrere, damage done, or other cause: or else, if he justifies in another’s right, as his bailiff or servant, he is said to make cognizance; that is, he acknowledges the taking, but insists that such taking was legal, as he acted by the command of one who had a right to distrain: and on the truth and legal merits of this avowry or cognizance the cause is determined. If it be determined for the plaintiff; viz. that the distress was wrongfully taken; he has already got his goods back into his own possession, and shall keep them, and moreover recover damages.26 But if the defendant prevails, and obtains judgment that the distress was legal, then he shall have a writ de retorno habendo, whereby the goods or chattels (which were distrained and then replevied) are returned again into his custody; to be sold, or otherwise disposed of, as if no replevin had been made. Or, in case of rent-arrere, he may have a writ to inquire into the value of the distress by a jury, and shall recover the amount of it in damages, if less than the arrear of rent; or, if more, then so much as shall be equal to such arrear: and, if the distress be insufficient, he may take a farther distress or distresses:27 but otherwise, if, pending a replevin for a former distress, a man distrains again for the same rent or service, then the party is not driven to his action of replevin, but shall have writ of recaption,28 and recover damages for the defendant’s contempt of the process of the law.
IN like manner, other remedies for other unlawful taking of a man’s goods consist only in recovering a satisfaction in damages. As if a man take the goods of another out of his actual or virtual possession, without having a lawful title so to do, it is an injury; which, though it does not amount to felony unless it be done animo furandi [with intent to steal], is nevertheless a transgression, for which an action of trespass vi et armis [by force and arms] will lie; wherein the plaintiff shall not recover the thing itself, but only damages for the loss of it. Or, if committed without force, the party may, at his choice have another remedy in damages by action of trover and conversion, of which I shall presently say more.
2. DEPRIVATION of possession may also be by an unjust detainer of another’s goods, though the original taking was lawful. As if I distrain another’s cattle damage-feasant, and he tenders me sufficient amends; now, though the original taking was lawful, my subsequent detainment of them after tender of amends is wrongful, and he shall have an action of replevin against me to recover them:29 in which he shall recover damages only for the detention and not for the caption, because the original taking was lawful. Or, if I lend a man a horse, and he afterwards refuses to restore it, this injury consists in the detaining, and not in the original taking, and the regular method for me to recover possession is by action of detinue [to detain].30 In this action, of detinue, it is necessary to ascertain the thing detained, in such manner as that it may be specifically known and recovered. Therefore it cannot be brought for money, corn, or the like: for that cannot be known from other money or corn; unless it be in a bag or a sack, for then it may be distinguishably marked. In order therefore to ground an action of detinue, which is only for the detaining, these points are necessary:31 1. That the defendant came lawfully by the goods, as either by delivery to him, or finding them; 2. That the plaintiff have a property; 3. That the goods themselves be of some value; and 4. That they be ascertained in point of identity. But there is one disadvantage which attends this action; viz. that the defendant is herein permitted to wage his law, that is, to exculpate himself by oath,32 and thereby defeat the plaintiff of his remedy: which privilege is grounded on the confidence originally reposed in the bailee by the bailor, in the borrower by the lender, and the like; from whence arose a strong presumptive evidence, that in the plaintiff’s own opinion the defendant was worthy of credit. But for this reason the action itself is of late much disused, and has given place to the action of trover.
THIS action, of trover and conversion, was in its original an action of trespass upon the case, for recovery of damages against such person as had found another’s goods, and refused to deliver them on demand, but converted them to his own use; from which finding and converting it is called an action of trover and conversion. The freedom of this action from wager of law, and the less degree of certainty requisite in describing the goods,33 gave it so considerable an advantage over the action of detinue, that by a fiction of law actions of trover were at length permitted to be brought against any man, who had in his possession by any means whatsoever the personal goods of another, and sold them or used them without the consent of the owner, or refused to deliver them when demanded. The injury lies in the conversion: for any man may take the goods of another into possession, if he finds them; but no finder is allowed to acquire a property therein, unless the owner be forever unknown:34 and therefore he must not convert them to his own use, which the law presumes him to do, if he refuses to restore them to the owner; for which reason such refusal alone is, prima facie, sufficient evidence of a conversion.35 The fact of the finding, or trover, is therefore now totally immaterial: for the plaintiff needs only to suggest (as words of form) that he lost such goods, and that the defendant found them; and, if he proves that the goods are his property, and that the defendant had them in his possession, it is sufficient. But a conversion must be fully proved: and then in this action the plaintiff shall recover damages, equal to the value of the thing converted, but not the thing itself; which nothing will recover but an action of detinue or replevin.
As to the damage that may be offered to things personal, while in the possession of the owner, as hunting a man’s deer, shooting his dogs, poisoning his cattle, or in any wise taking from the value of any of his chattels, or making them in a worse condition than before, these are injuries too obvious to need explication. I have only therefore to mention the remedies given by the law to redress them, which are in two shapes: by action of trespass wi et armis, where the act is in itself immediately injurious to another’s property, and therefore necessarily accompanied with some degree of force; and by special action on the case, where the act is in itself indifferent, and the injury only consequential, and therefore arising without any breach of the peace. In both of which suits the plaintiff shall recover damages, in proportion to the injury which he proves that his property has sustained. And it is not material whether the damage be done by the defendant himself, or his servants by his direction; for the action will lie against the master as well as the servant.36 And, if a man keeps a dog or other brute animal, used to do mischief, as by worrying sheep, or the like, the owner must answer for the consequence, if he knows of such evil habit.37
II. HITHERTO of injuries affecting the right of things personal, in possession. We are next to consider those which regard things in action only; or such rights as are founded on, and arise from contracts; the nature and several divisions of which were explained in the preceding volume.38 The violation, or non-performance, of these contracts might be extended into as great a variety of wrongs, as the rights which we then considered: but I shall now endeavor to reduce them into a narrow compass, by here making only a twofold division of contracts; viz. contracts express, and contracts implied; and considering the injuries that arise from the violation of each, and their respective remedies.
EXPRESS contracts include three distinct species, debts, covenants, and promises.
1. THE legal acceptation of debt is, a sum of money due by certain and express agreement. As, by a bond for a determinate sum; a bill or note; a special bargain; or a rent reserved on a lease; where the quantity is fixed and unalterable, and does not depend upon any after-calculation to settle it. The non-payment of these is an injury, for which the proper remedy is by action of debt,39 to compel the performance of the contract and recover the specific sum due.40 This is the shortest and surest remedy; particularly where the debt arises upon a specialty, that is, upon a deed or instrument under seal. So also, if I verbally agree to pay a man a certain price for a certain parcel of goods, and fail in the performance, an action of debt lies against me;41 for this is also a determinate contract: but if I agree for no settled price, I am not liable to an action of debt, but a special action on the case, according to the nature of my contract. And indeed actions of debt are now seldom brought but upon special contracts under seal: wherein the sum due is clearly and precisely expressed: for in case of such an action upon a simple contract, the plaintiff labors under two difficulties. First, the defendant has here the same advantage as in an action of detinue, that of waging his law, or purging himself of the debt the plaintiff must recover the whole debt he claims, or nothing at all. For the debt is one single cause of action, fixed and determined; and which therefore, if the proof varies from the claim, cannot be looked upon as the same contract whereof the performance is sued for. If therefore I bring an action of debt for 30£ I am not at liberty to prove a debt of 20£ and recover a verdict thereon;42 any more than if I bring an action of detinue for a horse, I can thereby recover an ox. For I fail in the proof of that contract, which my action or complaint has alleged to be specific, express, and determinate. But in an action on the case, on what is called an indebitatus assumpsit [debt undertaken], which is not brought to compel a specific performance of the contract, but to recover damages for its non-performance, the implied assumpsit [undertaking], 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 [for so much], 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 30£ 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.
THE form of the writ of debt is sometimes in the debet and detinet [owes and detains], 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, as by the obligee against the obligor, the landlord against the tenant, etc. But, if it be brought by or against an executor for a duty due to or from the testator, this, not being his own debt, shall be sued for in the detinet only.43 So also if the action be for goods, for corn, or an horse, the writ shall be in the detinet only; for nothing but a sum of money, for which I have personally contracted, is properly considered as my debt. And indeed a writ of debt in the detinet only, is neither more nor less than a mere writ of detinue: it might therefore perhaps be more easy (instead of distinguishing between the debet and detinet, and the detinet only, in an action of debt) to say at once that in the one case an action of debt may be had, in the other an action of detinue.
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 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 writ of covenant;44 which directs the sheriff to command the defendant generally to keep his covenant with the plaintiff (without specifying the nature of the covenant) or show 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 that is a covenant real, to convey or dispose of lands, which seems to be partly of a personal and partly of a real nature.45 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;46 the 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 completion of which he brings this action. And, for the end of this supposed difference, the fine or finalis concordia [final agreement] is made, whereby the deforciant (now called the cognizor) acknowledges the tenements to be the right of the plaintiff, now called the cognizee. And moreover, as leases for years were formerly considered only as contracts47or covenants for the enjoyment of the rents and profits, and not as the conveyance of any real interest in the land, the ancient remedy for the lessee, if ejected, was by 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, then to recover damages only.48
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. 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. 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 endorsee,49 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 no 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.
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 has 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 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 has beforehand 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 has 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,50 and shall not be put upon the proof of the original cause of action; but upon showing the judgment once obtained, still in full force, and yet unsatisfied, the law immediately implies, that by the original contract of society the defendant has 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 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 otherwise it will not be binding51) 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.52
THE same reason may with equal justice be applied to all penal statues, 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 grieved, or else to any of the king’s subjects in general. Of the former sort is the forfeiture inflicted by the statute of Winchester53 (explained and enforced by several subsequent statutes54) 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 offenses enumerated and made felony by that act. 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.55 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 seipso in hac parte sequitur.” [“Who prosecutes this suit as well for the king, etc. as for himself.”] If the king therefore himself commences this suit, he shall have the whole forfeiture.56 But if any one has 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 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.57
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 never perhaps actually made, yet constantly arise from this general implication and intendment of the courts of judicature, that every man has engaged to perform what his duty or justice requires. Thus,
1. IF I employ a person to transact any business for me, or perform any work, the law implies that I undertook, or assumed to pay him so much as his labor 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 [amount merited].
2. THERE is also an implied assumpsit on a quantum valebat [amount it is worth], 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 and received money of another’s, 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 repair the owner in damages, equivalent to what he has detained in such violation of 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 [by equity and right] 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 undue advantage is taken of the plaintiff’s situation.58
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.59
5. LIKEWISE, fifthly, upon a stated account between two merchants, 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;60 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,61 lay only against the parties themselves, and not their executors; because matters of account rested solely in 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. 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 willfully 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.62 If a sheriff or jailer 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.63 But if after judgment, a jailer 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 grounded64 on the equity of the statutes 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.65 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.66 But if I employ a 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 victualer, hangs out a sign and opens his house for travelers, 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 traveler.67 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.68 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. 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 sells any thing, does upon the sale warrant it to be good, the law annexes a tacit contract to this warranty, that if it be not so, he shall 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.69 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:70 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 [in the future]: as, that a horse is sound at the buying of him; not that he will be sound two years hence. But if the vendor knew the goods to be unsound, and has used any art to disguise them,71 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.72 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 has been held that an action on the case lies, to recover damages for this imposition.73
BESIDES the special action on the case, there is also a peculiar remedy, entitled an action of deceit,74 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;75 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 suffers a fraudulent recovery of land or chattels to the prejudice of him that has right. It also lies in the cases of warranty before-mentioned,76 and the other injuries committed contrary to good faith and honesty. But the action on the case, in nature of deceit, is more usually brought upon these occasions.
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.
NOTES
1. See book II. ch. 2.
2. Ibid. ch. 25.
3. c. 2.§ 6.
4. F. N. B. 101.
5. Ibid. 100.
6. Stat. 2 W. & M. Seff. 1. c. 5.
7. 6 Mod. 211.
8. Cro. Jac. 419. Salk. 586.
9. See pag. 13.
10. Co. Litt. 145.
11. F. N. B. 68.
12. 2 Inst. 139.
13. 52 Hen. III. c. 21
14. See pag. 19.
15. Finch. L. 316.
16. Co. Litt. 145. Finch. L. 450.
17. Inst. 193.
18. Smith’s commonw. b.3.c.10. 2Inst. 141.
19. F. N. B. 69. 73.
20. In the old northern languages the word withernam is used as equivalent to reprisals. (Stiernhook, de jure Sueon. l. 1. c. 10)
21. Raym. 475. The substance of this rule composed the terms of that famous question, with which Sir Thomas More (when a student on his travels) is said to have puzzled a pragmatical professor in the university of Bruges in Flanders; who gave a universal challenge to dispute with any person in any science: in omni scibili, et de quolibet ente. Upon which Mr. More sent him this question, “utrum averia carucae, capta in vetito namio, sint irreplegibilia;” whether beasts of the plow, taken in withernam, are incapable of being replevied. (Hoddefd. c. 5.)
22. 2 Inst. 139.
23. F. N. B. 69. 70.
24. Finch. L. 317.
25. 2 Saund. 195.
26. F. N. B. 69.
27. Stat. 17 Car. II. c. 7.
28. F. N. B. 71.
29. F. N. B. 69.
30. Ibid. 138.
31. Co. Litt. 286.
32. Ibid. 295.
33. Salk. 654.
34. See book. I. ch. 8. book II. ch. 1. & 26.
35. 10 Rep. 56.
36. Noy’s Max. c. 44.
37. Con. Car 254. 487.
38. See book II. ch. 30.
39. F. N. B. 119.
40. See appendix, No. III. § N.
41. 4 Rep. 94.
42. Dyer. 219.
43. F. N. B. 119.
44. F. N. B. 145.
45. lial. On F. N. B. 146.
46. See book II. ch. 21.
47. Ibid. ch. 9.
48. Ero. Abr. t. covenant. 33. F. N. B. 145.
49. See book II. ch. 30.
50. 1 Rool. Abr. 600, 601.
51. Law of nisi prius. 155.
52. 5 Rep. 64. Hob. 279.
53. 13 Iidw. J. c. 1.
54. 27Eliz. c. 13. 29Car. II. c.7. 8Geo. II. c. 16. 22 Geo. II. c. 24.
55. See book II. ch. 29.
56. 2 Hawk. P. C. 268.
57. Ff. 47. 15. 3.
58. 4 Burr. 1012.
59. Carth. 446. 2 Keb. 99.
60. F. N. B. 116.
61. Co. Litt. 90.
62. Moor. 431. 11 Rep. 99.
63. Cro. Eliz. 625. Comb. 69.
64. Bro. Abr. t. parliament. 19. 2 Inst. 382.
65. Finch. L. 188.
66. 11 Rep. 54. 1 Saund. 324.
67. 1 Ventr. 333.
68. 10 Rep. 56.
69. F. N. B. 94.
70. Finch. L. 189.
71. 2 Roll. Rep. 5.
72. Finch. L. 189.
73. Salk. 611.
74. F. N. B. 95.
75. Law of nisi prius. 29.
76. F. N. B. 98.
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