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ASSUMPSIT I.

J.who also held that after the time of without the forms prescribed by the eredit expired indebitatus assumpsit act of parliament, may still recover, would lie. 4 East, 149.

upon a count for an account stated, 13. If goods be bought to be paid for the amount of the tolls for which he

by a bill at two months, and the had credited the defendant passing vendor accordiugly draw upon the through the gate; no objection beyendee for the value, who refuses ing made to the plaintiff's title by to accept, seinb. that the vendee can- the trustees or creditors of the turnnot be sued in an action for goods

pike.

And the plaintiff having sold and delivered, but upon the

sent the defendant an account of special contraet only. Dutton v. the tolls due, who not long after

Solomonson. 3 Bos. j. Pull. 582. sent 51. inelosed in a letter to the 14. But certainly he cannot be sued in plaintiff in which he stated

that form of action till after the ex- that she should have the repiration of the two months. 3 Bos. mainder next week, is evidence of * Pull. 582.

such an account stated, and a re15. Where a plaintiff is precluded cognition of the intestate's title to be from recovering upon a promissory

accounted with for the tolls. Peanote for want of a proper stamp, if cock v. Harris. 10 East, 104. he can give other evidence of the 19. Under an agreement in the nature consideration of his demand, he may of a charter-party whereby the recover on the common counts. 1 plaintiff let his ship to freight to East, 58.

the defendants on a voyage from 16. 8. P. Tyte v. Jones. Sittings at

Shields to Lisbon, with convoy; the Westminster, 1788, cor. Lord Ken- freight to be paid on right delivery of yon. 1 East, 58, n.

Alves v. Hodg- the cargo; the ship having sailed 7 Term Rep. 241.

from Shields with her cargo, and 17. Where the plaintiff declares upon joined convoy at Portsmouth; and

a quantum nuruit for work and la- after being detained near a month bour done, and materials found, it off Lymington, her sailing orders is competent to the defendant even being recalled by the convoy, in without notice to the plaintiff to consequence of the occupation of prove that the work done was not Portugal; by the enemy; and the worth so much as the plaintiff defendants have refused to accept claims. And if it appear, that the the cargo at Portsmouth, to which plaintiff had been paid on account the ship returned, it was unloaded as much as the work was worth, he by the plaintiff, after notice to the cannot recover. And so it seems,

defendant, and then was sold by that the defendant may be let into consent of both parties without prejsuch defence where the contract udice: held, that the plaintiff conld was for the work to be done at a not recover freight pro rata on decertain price; at least, if he give inurrage. Leddard y. Lopes. 10 the plaintiit previous notice of such East, 526. defence, that he may be prepared 20. Where a seaman shipped for a to meet it.

And, quære, if the voyage before the master was erwork done be wholly inadequate to pointed, the shipping paper at the answer the purpose for which it time of the seaman's signing it havwas undertaken to be performed, ing a blank space for the master's whether the defendant may not be name, which was filled when the let into such defence even without master signed, it was held that the motice. Basien v. Butter. hy East, master was liable to the action of 479.

the seaman for his wages. Mayo 18. A collector or renter of turnpike v. Tarding. 6 Mass. 300.

tolls, though illegally appointed, 21. Where a son had built a house on

son.

the land of his father, under an ex- died without devising any thing to pectation that the father would de- his nephew, or making him any vise the land to him, the father is compensation; it was held, that an not answerable to the son, or to his action, on an implied assumpsit, creditors upon a foreign attach- would lie against the executors, for ment, for the value of the house. the work and labour performed by Wells et al. v. Banister et al. Trus- the nephew_for the testator. Jatee. Mass. 514.

cobson v. The Eexecutors of Le 22. 1. owns a room on the lower floor Grange. 3 Johns. Rep. 199.

of a dwelling-house, and the cellar 27. Where A. gave to B. a receipt for under it; and B. owns the chamber lumber to the amount of 475 dolover the room, and the remainder of lars, if it held out on inspection, the house: the roof becoming ruin- which sum was to be endorsed on a ous, B. makes the necessary re- bond and mortgage from B. to A. pairs : held, that no action lies a- and B. assigned over the receipt to gainst A. for contribution to the ex- C. and a suit was brought in the pence of such repairs. Loring v. name of B. against A. for the lumBeacon. 4 Mass.

ber, as for goods sold and delivered; 23. If.A. sells merchandize to B. and a- and notice of the assignment was

grees to receive certain promissory given to A. who admitted that he notes in payment; if the notes are had sold the bond and mortgage, afterwards discovered to be forged,

(referred to in the receipt of 1.) to and B. was ignorant of the fact, A. D., but that he could get the encannot afterwards resort to B. for dorsement made on the bond. It payment for the merchandize : oth- was held, that as A. had not shown er vise, if the original bargain was that the endorsement had actually for cash, and the notes were re

been made on the bond, agreeably ceived by the vendor as an accom. to the stipulation in the receipt ; modation to the vendee.

and the parties by their acts having Wild. 6 Mass. 521.

waived the specific appropriation of 24. In all cases of assumpsit, whatever the amount of the lumber to the

shews, that a complete satisfaction payment of the bond, the suit ahas been received by the plaintiff gainst 4. might be maintained for before the trial, may be given in evi- the lumber, as for goods sold and dence under the general issue. Bay- delivered. Eels v. Finch. 5 Johns. lies et al. v. Fettyplace et al. 7

Rep. 193. Mass. 336.

28. An action may be maintained by 25. If one of two partners in trade a bastard against the administra

dies, an action of indebitatus as- tors of his putative father, upon a sumpsit will lie against the surviv- promise made in consideration of or, for goods before sold to the part- services. 4 Dallas, 130. nership, without taking notice of the 20. Action of indeb. ass. lies for the partnership, or the death of one, and claimants of distributive shares in the survivorship of the other. Goelet an intestate's estate, against the ad

V. M'Instry. 1 Johns. Cas. 405. ministrator, without proof of an ex26. Where a young man, at the re- press assumpsit. 4 Dallas, 147.

quest of his uncle, went to live with 30. If a promissory note of a third perhim, and the uncle proinised to do son be indorsed, by the purchaser of by him as his own child; and he goods, to the vendor, as a conditionlived with, and worked for the un- al payment for the goods. Quere. cle eleven years, and the uncle said whether the vendor is, in any case. that his nephew should be one of his obliged to sue the maker of the note heirs, and spoke of advancing a sum before he can resort to the purchas. of money to purchase a farm, as a er of the goods on the original concompensation for his services, but

Ellis v.

traet of sale? Clark v. Young. 1

sideration of the court judgment enCranch, 193.

tered nunc pro tunc. isley v. Reyn31. A suit against the defendant as olds. 2 Str. 915.

indorser of the note, and a suit a- 3. Quantum meruit lies for serving as gainst him for the goods sold, are a commissioner on a commission to upon distinct and different causes of examine witnesses. Stockhold v. action; and the first cannot be Collington. 1 Salk. 330. pleaded in bar of the second. I. 4. Assumpsit to deliver corn on or bid. 193.

before the 5th of January, into a 32. It is not necessary for the plain- barge, to be brought by the plaintiff to offer to return the note, to en- tiff. Breach that

he did not delivtitle him to an action for the goods er upon the 5th of January is good, sold. Ib. 194.

and umexceptionable after verdict. 33. An action, for goods sold and de- Harmon v. Creden. 1 Salk. 140. 1 livered, cannot be maintained by L. Raym. 620. him wbo received a note as condi- 5. Where money is lent on a pledge, tional payment therefor and has the borrower is liable without there passed away that note.

Harris v.

is an agreement to the contrary. Johnstont. 3 Cranch, 311.

The South Sea Company v. Dun34. If part of the goods were the sole coinb. 2 Str. 919.

property of D., and the residue the 6. An indebitatus assumpsit for monsole property of I., and if I. had au- ey lent to the wife at the request of thority from D. to sell D.'s part, I. the husband is a good count. Stemay maintain an action for the phenson v. Hardy. 3 Wils. 388. 2 whole in his own name.

Ib.

Black. 872. 33. Assumpsit, quantum meruit will not . Forbearance no consideration to

lie for work and labour done in raise an assumpsit, where no cause part fulfilment of a sealed contract, of action before. Lloyd v. Lee. 1 although the defendant had pre- Str. 94. vented the plaintiff from finishing 8. Assumpsit lies for petty customs. the work_according to contract. The Mayor of Exeter v. Trimlet. Young v. Preston. 4 Cranch, 230. 95.

9. Assumpsit to pay plaintiff 2. per II. Consideration.

cent. to procure a purchaser of

plaintiff's place of surveyor of the 1. Asaumpsit to take up a hogshead baggage of the port of London, is

of brandy in one cellar, and lay it bad and contrary to the statute adown in another. Breach, that tam gainst sale of offices. Stackpole v. negligenter, he put it down in the Earle, Esq. 2 Wils. 133. latter, that it was staved, gist. If 10. An action lies for goods sold aH. undertake to do a thing without broad, which are prohibited here, if hire, no action lies for the nonfeas- the delivery of them be complete aance: but if he enters upon the do- broad, though the vendor knows ing it, action lies for a misfeasance ; they are to be run into England. if through his own neglect or mis- Holman & others v. Johnston (alias management, hecause it is a deceit, Neuland). Couper, 311. but not if by mere accident. Coggs 11. On a bare leaving a thing in anv. Bernard. 1 Salk. 26. 2 L. Ray- other's custody, the law raises a mond, 909.

promise not grossly to neglect or a2. Where money is extorted by du- buse it. Mytton y. Cock. 2 Str. ress of goods, assumpsit will lie for 1099. it ; tender of more than legal inter- 12. · Administrator makes attorney to est is good where defendant dies receive the intestate's debts; a will pending time of argument or con

appearing, the letter of administra.

Executor may

a

Dean v.

tion is repealed.

though his name is not expressly bring indebitatus assumpsit against set as the nominative case to the the attorney for money received to word assumpsit. Sheer v. Brown. his use, quia administration void. 2 L. Raym. 899. Salk. 26. 3 Salk. Jacob v. Mllen. 1 Salk. 27.

17. 13. Assurupsit will lie against the as- 22. Contract to pay and deliver is a

signees of a bankrupt for a credit- contract to transfer the property, or's share under an order of the not merely to give the possession, commissioners for dividend. and assumpsit lies. Hierbert et Alii

Brown v. Bullen. 1 Douglas, 407. v. Burstow. 2 L. Raymond, 895. 14. Assumpsit by executor on promise

Salk. 23. to testator, statute of limitations 23. The delivery of a note by which pleaded, and held that a promise to a stranger promises to pay the dethe executor within six years could liverer money, is a good consideranot be given in evidence.

tion for a promise, and in an acCrane. 1 Salk. 28. 2 L. Raym.

tion thereon, the plaintiff need not 1101. Green v. Crane.

prove upon what consideration the 15. Assumpsit, in consideration the note was made. Meredith v. Chute.

oflicer would restore goods taken on 2 L. Raym. 759. Salk. 25. a scire facius to pay the debt, a 24. Promise to pay the husband so good consideration. Love's case. 1 much when his wife should be a laSalk. 28.

dy, good. Rands v. Tripp. 3 Salk. 16. Indebitatus assumpsit lies upon an 65.

order to pay money under the au. 25. Indebitatus assumpsit lies for mothority of an act of parliament. ney won at play. Eggleton v. LeuRann v. Green. { 1 Douglas, 402. in. 3 Salk. 175. 1 Sulk. 23. Sed q.

Brown v. Bullen. Ibid. 407. 26. Money won at play cannot be re17. Assumpsit will lie for not paying covered from the loser on an indebi

the consideration of an assignment tatus assumpsit ; on an assumpsit upof an uncertain debt. Moulsdale v. on mutual promises it may. Smith Birchall. 2 Blackstone, 820.

v. Airey. 2 L. Raym. 1034. 3 Salk. 18. If one recovers money mala fide 14, 175. Bovey v. Castleman. 1

by suit in an inferior court, indebita- L. Raym. 69. Same Point. tus assumpsit will lie in K. B. to 273 Assumpsit to run a horse at such make him refund it back. Moses time as the plaintiff shall appoint, & Macpherlan. 1 Blackstone, K. and he sets forth that he appointed B. 219.

such a day, good. Scott v. Hogson. 19. Indebitatus assumpsit will lie on the 3 Salk. 345.

judgment of a foreign court without 28. If a man takes goods to which he declaring upon, or proving, the has no right and sells them, the grounds and cause of action on owner may wave the tort, and rewhich the judgment went. Craw- cover the price of which they were ford v. Whitall. Plaistow v. Van sold in an indebitatus assumpsit for

Urem, Cam. Scacc. 1 Douglas, 4. money had and received. Lanine 20. Promise of a bribe to a sheriff's v. Dorrell. 2 L. Raym. 1216.

officer to induce him to take bail, is 29. Q. Whether an indebitatus assumpan illegal consideration, and will sit for divers goods, merchandise, not maintain assumpsit. Smith of and things, is not too uncertain. Stotesbury. 1 Black. K. B. 20-1. Spark v. Jobber. 2 L. Raym. 1450. 3 Burr. 924.

30. Assumpsit will lie for a fine assess21. Upon a count in assumpsit, if no ed on admission to a copyhold es

other person is mentioned Dian the tate. Grant v. Astle. 2 Douglas, 728. plaintiff and defendant, it shall be In such action you must prove that taken that the defendant promised, the sumn laid to have been assessed, does not exceed two years value of trover, or trespass. Feltham and the estate, because you cannot re- others v. Tyrrel and others. Lofft, cover a less sum than that laid in 207.

the declaration. Ibid. 531. 36. A. having proposed to sell goods The declaration in such action may to B. gave him a certain time at his

state generally, that the defendant request to determine whether he was indebted to the plaintiff in such would buy them or not; B. within a sum (viz. the amount of all the the time determined to buy them, fines due,) for reasonable fines due and gave notice thereof to 1. ; yet and payable to him. Whitehead v. 1. was not liable in an action for Huni. 2 Douglas, 727.

not delivering them: for B. not be80, a general indebitatus assumpsit will ing bound by the original contract, lie for tolls. Ibid. 728.

there was no consideration to bind 31. J. W. elerk to plaintiff, a brewer, A. Cooke y. Oxley. 3 Terin Rep.

and receiving money and negotiable 653. notes from the customers in the usu- 37. If A. and B. agree to exchange al course of trade for plaintiff's use, horses, and B. give a sum of money paid several sums to defendant, a- to A. to bind the bargain, A. may mounting to 4591. 45. 4d. upon maintain an action against B. for chances of the coming up of tickets not delivering his horse, without in the state lottery of 1772, contra- alleging any delivery of, or offer to ry to the act of parliament. The deliver his own to B. ; for the payplaintiff

' had given a release to his ment of earnest money vests the clerk and his sureties for the said property of the plaintiff's horse in money, no part of which came to B. * Bach v. Owen. 5 Term Rep. his use, nor was returned on de- 409. mand. On a verdict for plaintiff 38. But in such an action A. must aland case reserved whether he had lege a demand on B. for his horse ; a right to recover, and whether the stating that B. did not deliver though clerk could be a witness, the court often requested so to do, is not suffidetermined in the affimative in both cient. 5 Term Rep. 409. points. Clarkce v. Johnson de Co. 39. In an action on the case for not Lofft, 766.

delivering corn at S. pursuant to an 32. Assumpsit will not lie for a past agreement, whereby tho defendant,

consideration unless it was at the in consideration that the plaintiff request of the party. The effect had bought of him a certain quanof the statutes of jeofails as to judg- tity at a fixed price, undertook to ment by default. Tlayes v. Warren. deliver it to the plaintiff at S. with2 Str. 933.

in one month from the time of the 33. A stranger to the consideration sale, the plaintiff must aver a read

cannot maintain any action. Crow iness to pay the price or what is 1. Rogers. 1 Str. 592.

equivalent thereto. Morton v. Lamb. 34. Where one thing is to be the con- 7 Term Rep. 125.

sideration of the other, though there 40. In such a case the delivery of the be mutual promises, performance corn and the payment of the price must be averred and proved. Cal- were concurrent acts to be done at

lonel v. Briggs. 1 Salk. 112. the same time; and each must aver 33. Assumpsit will not lie against a performance or a readiness to per

person who receives as a collector form his part before he can mainin a legal office, viz. as excise offi- tain an action against the other. cer, and has paid over.

White- Term Rep. 123. bread v. Brooksbanks. Lofst, 529. 41. In an action for the non-delivery It may be brought where there is a of malt, which the defendant had

tort, which is a proper ground for undertaken to deliver ou request at

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