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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 and [*162] received money belonging to another, without any valuable considera

tion 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 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)

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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;(r) commanding the defendant to render a just account [*163] 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, (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. (9) 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.

(p) Burr. 1012.

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

(r) F. N. B. 116.

(8) Co. Litt. 90.

(9) And by statute 3 and 4 Wm. IV, c. 42, an action may be maintained by or against the personal representatives of any person deceased, for any wrong committed by or against him, in respect of property, real or personal, within six calendar months before such per son's death, and any damages recovered against such representatives are made payable in the regular order of administration.

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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 therefor 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 misfeasance; 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 the sheriff or gaoler suffers a prisoner, who is taken upon mesne process, (that *is, during the pend[*164] ency 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 (wo) on the equity of the statutes of Westm. 2, 13 Edw. I, c. 11, and Ĭ 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) (10) 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) (11) 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 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 un

dertakes that the *commodity he sells is his own; and if it proves [*165]

otherwise, an action on the case lies against him, to exact damages for

(t) Moor. 451. 11 Rep. 99.

(u) Cro. Eliz. 625. Comb. 69.
(w) Bro. Abr. t. parliament, 19. 2 Inst. 382. (x) Finch, L. 188.
(y) 11. Rep. 54. 1 Saund. 312.
(z) 1 Ventr. 833. (a) 10 Rep. 56.

(10) There is no implied undertaking on the part of an attorney, solicitor, or counsellor, that the business he takes charge of shall be successful, or that his advice shall always be sound and reliable. What he is responsible for is ordinary skill, diligence and care in the exercise of his profession, having reference to the nature of the business he undertakes to do: Holmes v. Peck, 1 R. I., 242; Miller v. Wilson, 24 Penn. St., 114; Cox v. Sullivan, 7 Ga., 144; Clussman v. Merkel, 3 Bosw., 402; Walker v. Goodman, 21 Ala., 641; and for any failure to exercise these, an action on the case may be maintained by his client against him. For the rules of fairness and good faith which the law requires to be observed in this relation, and the skill required, see Leighton v. Sargent, 27 N. H., 460; Howard v. Grover, 28 Me., 97; Holmes v. Peck, 1 R. I., 243; Hallam v. Means, 82 Ill., 379; Long v. Morrison, 14 Ind., 595; Craig v. Chambers, 17 Ohio St., 253; Heath v. Glisan, 3 Ore., 64. (11) Upon these subjects, which are very broad, and embrace cases almost infinite in variety, the reader will of course consult the elementary treatises on bailments, carriers, contracts, &c.

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 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 avoid 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. 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 remedy, entitled an action of deceit, (g) to give damages in some particular cases [*166] of fraud, (12) 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 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 the 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 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 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.

(c) Finch, L. 189.

(b) F. N. B. 94.
(d) 2 Roll, Rep. 5. (e) Finch, L. 189. (f) Salk. 211. (g) F. N. B. 95.
(1) Booth, real actions, 251. Rast. Entr. 221, 222. See page 405.
Booth, 253, Co. Entr. 8.

(m) 3 Lev. 419.

(h) Law of nisi prius, 30. (k) F. N. B. 98.

(n) Rast. Entr. 100, b. 8 Lev. 415. Lutw. 711, 749.

(12) This particular action is abolished; an action on the case being now the substitute.

CHAPTER X.

OF INJURIES TO REAL PROPERTY; AND FIRST OF DISPOSSESSION, OR OUSTER OF THE FREEHOLD.

I COME now to consider such injuries as affect that species of property which the laws of England have denominated real; as being of a more substantial and permanent nature than those transitory rights of which personal chattels are the object.

Real injuries, then, or injuries affecting real rights, are principally six; 1. Ouster; 2. Trespass; 3. Nuisance; 4. Waste; 5. Subtraction; 6. Disturbance. 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 injuries sustained. And such ouster, or dispossession, may either be of the freehold, or of chattels 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 abatemant is where a person dies seized 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.

The abatement of a freehold is somewhat similar to an immediate occupancy in a state of nature, which is effected by taking possession of the land the same instant that the prior occupant, by his death, relinquishes it. But this, however agreeable to natural justice, considering man merely as an individual, is diametrically opposite to the law of society, and particularly the law of England; which for the preservation of public peace, hath prohibited, as far as possible, all acquisitions by mere occupancy: and hath directed that lands, on the death of the present possessor, should immediately vest either in some person, expressly named and appointed by the deceased, as his devisee; or, on default of such appointment, in such of his next relations as the law hath selected and pointed out as his natural representative or heir. Every entry, therefore, of a mere stranger by way of intervention between the ancestor and heir, or person next entitled, which keeps the heir or devisee out of possession, is one of the highest injuries to the right of real property.

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*2. The second species of injury by ouster, or amotion of possession [*169] from the freehold, is by intrusion: which is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion. And it happens where a tenant for term of life dieth seized of certain lands and tenements, and a stranger entereth thereon, after such death of the tenant, and before any entry of him in remainder or reversion. (c) This entry ard interposition of the stranger differ from an abatement in this; that an abatement is always to the prejudice of the heir, or immediate devisee; an intrusion is always to the prejudice of him in remainder or reversion. For example; if A dies seized of lands in fee-simple, and before the entry of B his heir Centers thereon, this is an abatement; but if A be tenant for life, with remainder to B in fee-simple, and after the death of A, C enters, this is an intrusion. Also if A be tenant for life on lease from B, or his ancestors, or be tenant by the curtesy, or in dower, the reversion being vested in B; and after the death of A, C enters and keeps B out of possession, this is likewise an intrusion. So that an intrusion is always immediately consequent upon determination of a particular estate; an abatement is always consequent upon the descent or devise of an estate in fee-simple. And in either case the injury is equally great to him whose possession is defeated by this unlawful occupancy.

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3. The third species of injury by ouster, or privation of the freehold, is by disseisin. Disseisin is a wrongful putting out of him that is seized of the freehold. (d) The two former species of injury were by a wrongful entry where the possession was vacant; but this is an attack upon him who is in actual possession, and turning him out of it. Those were an ouster from a freehold in law; this is an ouster from a freehold in deed. Disseisin may be effected either in corporeal inheritances, *or incorporeal. Disseisin of [*170] things corporeal, as of houses, lands, &c., must be by entry and actual dispossession of the freehold; (e) as if a man enters either by force or fraud into the house of another, and turns, or at least keeps, him or his servants out of possession. Disseisin of incorporeal hereditaments cannot be an actual dispossession: for the subject itself is neither capable of actual bodily possession or dispossession; but it depends on their respective natures, and various kinds; being in general nothing more than a disturbance of the owner in the means of coming at, or enjoying them. With regard to freehold rent in particular, our ancient law books (f) mentioned five methods of working à disseisin thereof: 1. By enclosure; where the tenant so encloseth the house or land, that the lord cannot come to distrain thereon, or demand it: 2. By forestaller, or lying in wait; when the tenant besetteth the way with force and arms, or by menaces of bodily hurt affrights the lessor from coming: 3. By rescous ; that is, either by violently retaking a distress taken, or by preventing the lord with force and arms from taking any at all: 4. By replevin; when the tenant replevies the distress at such time when his rent is really due: 5. By denial; which is when the rent being lawfully demanded is not paid. All, or any of these circumstances, amount to a disseisin of rent; that is, they wrongfully put the owner out of the only possession, of which the subject-matter is capable, namely, the receipt of it. But all these disseisins of hereditaments incorporeal are only so at the election and choice of the party injured; if, for the sake of more easily trying the right, he is pleased to suppose himself disseised. (9) Otherwise, as there can be no actual dispossession, he cannot be compulsively disseised of any incorporeal hereditament.

And so too, even in corporeal hereditaments, a man may frequently suppose himself to be disseised, when he is not so in fact, for the sake of entitling himself to the more easy and commodious remedy of an assize of novel disseisin (which will be explained in the sequel of this chapter), instead of being

(c) Co. Litt. 277. F. N. B. 203, 204.
(f) Finch, L. 165, 166. Litt. § 237, &c.

(d) Co. Litt. 277.

(e) Co. Litt. 181.

(g) Litt. §§ 588, 589.

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