Sidebilder
PDF
ePub

E, should be thereto requested ; yet the said A and E, in the lifetime of the said A, although often requested, or the said E, after the decease of the said A, never rendered such reasonable account to the said s, in his lifetime, or since the decease of the said S to the plaintiff, although often requested, but the said E still neglects and refuses so to do.

Against the same, as bailiff of lands, fc. Second Count. And also, for that the said E and A, in his lifetime, to wit, on &c., and from thenceforth until &c., at &c., were bailiffs of the said s, in his lifetime, of the several messuages, buildings, parts of buildings, lots and tracts of land, and parcels of real estate, mentioned in the schedule hereto annexed, with the

appurtenances, of them the said S, E, and C, now deceased; and for all that time had the care and management thereof, and received the issues and profits thereof, for the common benefit and profit of the said S, E, and C, during his life, and, after his decease, for the common benefit and profit of the said S and E. and the executors of the testament of the said C, to render a reasonable account thereof to the said S, when they should be thereto required; yet, &c. as before. Essex S. J. C., 1797. Putnam, adm'r v. Hussey. S. PUTNAM.

Partner v. Partner, as receiver. In a plea of account; for that the said B, at &c., was the receiver of the moneys of the plaintiff, from &c. to &c., however and by whatever contract accruing, for the common use, benefit, and profil of them, the suid D and the plaintiff, and, during that time, received of the plaintiff's money, at &c., by the hands of A. H. $1000, to merchandize with, and to make profit thereof for them, the said B and the plaintiff

, and thereof to render the plaintiff a reasonable account on demand ; yet, though requested, the said B hath not rendered a reasonable account thereof, but wholly refuses so to do. Rast. Ent. 19.

S. SEWALL. Note. The general rule is, that, where the plaintiff declares against one, as receiver, he must specify by whose hands the moneys were received; but, in the case of merchant partners, the rule is dispensed with, and the declaration only states the money received to the common profit, &c. F. N, B. 117, D; Co. Litt. 172. (MSS.)

ASSUMPSIT.

Assumpsit is the proper remedy to recover damages, for the breach or non-fulfilment of any contract, express or implied, written or unwritten, if not grounded on an instrument under seal ; and “ wherever a man is under a legal or equitable obligation to pay, the law implies a promise, though none was ever actually made. Per Lord Mansfield in Hawkes v. Saunders, Cowp. 290.

Where Assumpsit lies. It lies to recover back money, paid by mistake, either of fact or in law, money, obtained by imposition, fraud, extortion, oppression, or any undue advantage taken of plaintiff's situation; or, for money paid for a consideration that happens to fail, or on a contract, which is rescinded. 1 Term. R. 133 ; 2 Esp. R. 639. But assumpsit does not lie to recover back money paid by plaintiff and claimed of him, as payable in point of honor and honesty, though not recoverable by law; as a debt, barred by the statute of limitations or contracted during infancy, or to the extent of principal and legal interest on an usurious contract, or for money fairly lost at play ; for, in such cases defendant may retain, though he cannot recover by law. Cowp. 94 ; 1 T. R. 286.

But now, by ch. 50, § 12, of the Rev. Stat., money lost at play, may be recovered back, in an action of assumpsit, for money had and received ; and goods lost at play may be recovered back in an action of trover; or, a special action on the case may be maintained. If the loser does not commence such action within three months, any other person may commencé an action, and recover the treble value of the money or goods in an action of Debt.

By $ 13, wager of law is allowed between the loser and winner, in an action brought by the loser, at the plaintiff's election.

Assumpsit_lies for a penalty forfeited upon a by-law. 2 Lev. 252. The Barber Surgeons of London v. Pelson.

It lies upon an express promise to pay a debt upon a specialty, upon a new consideration ; as forbearance. Briti v. Read, Cro. Car. 250 ; Ashbrook v. Shape, Cro. El. 240. And though, generally, Assumpsit cannot be maintained for rent due on a lease, if there is an express promise, it will lie. Johnson v. May, 3 Lev. 150. Where goods, under a warrant of distress on a conviction, are taken and sold, and the conviction is quashed, the owner may waive the tort, and bring Assumpsit for money had and received to his use.

Lindon v. Hooper, Cowp. 419; 1 T. Rep. 387, in Birch v. Wright.

So where · A's goods have been taken in execution for a third. person's debt, A may maintain an action for money had and re-. ceived. Ibid.

14

Assumpsit is likewise a proper remedy to recover money due for freight; to recover a legacy; to recover money awarded by arbitrators ; to recover back money of which one has been cheated or defrauded, to recover back money paid in consequence of any contract, &c. made illegal and void by statute, if the plaintiff is not particeps criminis ; to recover an assessment legally made, or a forfeiture incurred by a breach of a by-law of a society; so for tolls; for fees; or any other charges for the performance of any act required by one's office, and allowed by law; to recover back money paid to one acting under a void authority. 1 Salk. 22.

By ch. 118, 8 42, Rev. Stat. fines and forfeitures may be recovered in an action of Debt, or, on the case, where there is no express provision made for the mode of recovering them. So, if they are made recoverable by bili, plaint or information, they may be recovered by an action of debt, or on the case.

So where a judgment is reversed for error, Assumpsit may be maintained for money paid under it.

Assumpsit may be maintained against a corporation on an implied promise. ' 14 Johns. 118.

It may be maintained for the price of land sold; and the acknowledgment of payment in the deed is not conclusive that it has been paid. 14 Johns. 210.

Where Assumpsit does not lie. Where a man pays a forged bill of exchange drawn on him, Assumpsit does not lie against an indorsee, who has acted fairly, to recover the money back. M. 3; G. 3; B. M. 1354.

If A pay money to B to bribe officers, which is paid accordingly, Assumpsit cannot be maintained against B. 1 Salk. 22, Tompkins V. Bennet.

But Assumpsit will not lie to recover back money paid into court, though paid wrongfully.

Where two are partners in any unlawful undertaking, and one receives money on that account, the other cannot maintain Assumpsit for a share.

Assumpsit will not lie between partners in trade, without an express promise.

If A Pays B a sum of money to avoid a suit, in which he might have a good defence, and states at the time, that he does it without prejudice to his right, yet he cannot maintain Assumpsit to recover it back; as to allow it, would lead to circuity of action; since any matter which would enable him to recover back the money paid, would be a good defence to the former action. 1 Esp. N. P. C. 84, 279; 2 E. N. P. C. 546.

If a creditor in payment of his debt, receives a note or bill of a third person payable at a future day, he cannot commence an action on the original debt, until after the day of payment of the bill or note is elapsed. But if the bill or note was of no value when given, as if the bill was drawn on a person having no funds of the drawer, the creditor might consider it a nullity, and commence a suit on the original debt immediately. Stedman v. Gooch, I Esp. R. 3. Where a creditor takes a note of a third person in

payment of his debt, such third person before payment of the note, and before the time of payment elapsed, may recover against the debtor on a count for money paid to his use. 2 Esp. R. 571.

Assumpsit cannot be maintained upon a mere casual speaking, which, being without any good consideration, can be nothing more than nudum pactum, and assumpsit can never be maintained on a promise not grounded on a good consideration. 2 Lev. 30.

If A requests B to do an act, which B knows to be a trespass, and promises B an indemnity, Assumpsit cannot be maintained against A. since the promise is absolutely void. But if B does not know the act to be a trespass, the promise is binding. 17 Johns. 142.

Where an infant and another make a joint promise, and the infant avoids his promise, the joint promisor may be sued alone, and if he pleads in abatement that there is a joint promisor not named, the plaintiff may reply the special matter. See Gibbs v. Merrill, 3 Taunt. 307.

An action of Assumpsit cannot be maintained to recover the value of a parcel of prints of a libellous or indecent nature. Fores v. Johns, 4 Esp. R. 98.

Of considerations, nudum pactum, fc. The possibility of a benefit to the defendant, or detriment to the plaintiff, or a suspension or forbearance of right on the plaintiff's part, is a sufficient consideration for an express promise. But forbearance where there was no right of action, is no consideration. Loyd v. Lee, Str. 94; 1 Show. 183.

A mere moral obligation, which cannot be enforced at law, is not a sufficient consideration for an implied promise. But if there is an express promise, is a good consideration, and not merely nudum pactum. 2 East, 505; Atkins v. Banwell, Cowper's R.

See Mills v. Wyman, 3 Pick. 207. See also Littlefield v. Shee, 2 Barn. & Ald. where this doctrine is qualified.

One promise is a sufficient consideration for another between the same persons, and therefore mutual promises are grounded on a sufficient consideration 1 Sid. 180.

Thus A promises to marry B; and B promises to marry A; the consideration is sufficient.

Natural love and affection are not sufficient to ground an Assumpsit. Cro. Eliz. 756. A good consideration must be either a damage to the plaintiff, or a benefit to the defendant.

An erecuted consideration, done at the request of the defendant, is sufficient. Hayes v. Warren, 2 Strange, 933.

If A and B make an agreement, which for want of some formality is not binding, and B goes on and performs his part, and A

A conveys

agrees to pay him, this promise binds A. See Seago v. Deane, 4 Bing. 459.

A agrees to sell B goods, if B will agree to take them and give A notice by 2 o'clock ; B gives A notice, at the time; yet it is held B can maintain no action for the goods, because it is merely nudum pactum. Cook v. Oxley, 3 T. R. 653.

real estate to B, and B gives a note to A for the consideration ; but the title to the real estate fails, and nothing passes by the deed ; A cannot recover on the note, the consideration hav. ing failed.

See Dickenson v. Hall, 14 Pick. 217; Rice v. God. dard, 14 Pick. 293. On the contrary, it would seem, in such case, if B had actually paid the note, he would be entitled to recover it back against A.

But, if A contracts with B to convey to B land, then belonging to C, and B assigns his interest in that contract to D, for which D gives him a promissory note, it seems the note may be enforced by B in an action against D. See Trask v. Vinson, 20 Pick, 105.

The law of considerations legal and illegal, good and void is examined at length, Law Summary, p. 21, (2d ed.)

Of setting out the consideration, &c. in the Declaration. 1. If a good consideration and a frivolous one are both alleged, and the good one alone is proved, the plaintiff may recover.

2. If two good considerations are alleged, and one only is proved, the plaintiff cannot recover. See Brown v. London, 1 Lev. 298 ; Cro. Eliz. 146. So if one is illegal, the plaintiff cannot recover on the other.

3. Where a promise is grounded on two considerations, and the plaintiff declares only on one, he cannot have judgment; it is ground for a nonsuit.

It is immaterial from whom a consideration passes, if it is a suffi. cient foundation for a valid promise. See Cabot et al. v. Haskins, 3 Pick. 92.

4. A consideration executed, as labor performed, money paid, &c., must be alleged to have been done at the defendant's request, otherwise the promise will appear to be nudum pactum. But a past consid. eration beneficial to the defendant, and to which he assents afterwards, has been held to be sufficieni. 14 Johns. 378.

5. In the case of agreements, not under seal, a good consideration must always be alleged and proved.

6. When a contract consists of several distinct parts, it is sufficient to state so much as contains the entire consideration for the act, and the entire act promised. Clarke v. Gray, 6 East, 567. Collateral matters may be omitted. Ibid, Miles y. Sherwood, 8 East, 7. See 2 East, 2. Or such as are irrelevant to the breach ; or such as are merely insensible. 2 B. & P. 51.

7. But when the contract is entire, to do several things, it cannot be declared on as a several contract to do one of those things.

8. It is not necessary in any case, in declaring on a promise, to

« ForrigeFortsett »