or fully accounted: thefe exceptions are, becaufe a releafe and having fully accounted, are total extinctions of the right of action, which the court is to judge of; and even in these two cafes they must be pleaded fpecially, and cannot be given in evidence on the pica of never bailiff and receiver.

4. Of the trial before auditors. • If on trial, verdict be found agalaft the defendant, the court render judgment that the defendant do account, and appoint auditors to confit of three able judicious and difinterested men-who fhall be fworn to hear, examine and adjust the accounts, and may appoint time and place to hear the fame. If the defendant after notice given of the time and place appointed, refufe to attend upon the auditors and produce his account, they fhall award to the plaintiff the whole of his demand, and upon the parties producing to them their accounts, the auditors fhall have power to administer an oath unto then, to answer fuch interrogatories as they fhall think proper refpecting their ac counts; and upon either of the parties refufal to take fuch oath, or to anfwer directly to fuch interrogatories, it shall be in the power of the auditors to commit the party fo refufing to goal; there to remain at his own charge, until he will account, or anfwer as aforefaid.

It is a rule of pleading before auditors, that a matter which may and ought to have been pleaded in bar, cannot be pleaded before them; nor can any thing be pleaded before them contrary to that which has been pleaded before in bar, and which has been found by the verdict of the jury.

When the auditors have adjusted the account, they make report to the court, who are to render judgment for that fum, with reasonable coft for the fervice of the auditors, which is to be paid to them by the party in whofe favour the action is decided→ to be allowed in the bill of coft.

By the decifion of our courts, if the auditors find a balance in favour of the defendant, they may report the fame, and the court will render judgment for the recovery thereof, as well as coft, and award execution against the plaintiff.

a Statutes. 1T. b 3 Will. 114, 115. Whittlefey, Sup. C. 1794

This

Statutes, 12. d Dickinfon, vo

This is a deviation from the principles of the English common law, but perfectly confonant to reafon and juftice.

A juftice of the peace, has cognizance of an action of account for a demand within his jurifdiction, but must proceed according to law, in the mode of trial. He muft (if the iffae fo be found) render judgment in the first place, that the defendant do account, and as the ftatute does not authorife him to appoint auditors, he must take the account himself, and then render judg ment for the balance.

In an action of account, the plaintiff in his declaration should not only demand damages-but alfo that the defendant render his reasonable account.

ASSUMPSIT

ASSUMPSIT is an action whereby damages are recovered for the breach of any contract, promife, or undertaking.

Thefe contracts are either exprefs or implied; both are equal grounds of this action, for the obligations of natural juftice are equally strong, as the most exprefs promife in the eye of the law.

Affumpfit is of two forts: 1. Indebitatus affumpfit, which in its nature, is an action of debt, and lies in cafes only where debt will lie. 2. A fpecial affumpfit in which the damages are not in the nature of a debt, but as a compenfation for an injury

In treating of this action, I fhall confider, 1. The ground of the contract itself. 2. The contract with refpect to Factors, Agents and Partners. 3. The declaration.

1. Of the ground of the contract itself: which leads me to confider, 1. On what contracts this action can be maintained. 2. On what contracts it cannot be maintained.

1. On what contracts it can be maintained-Thefe are either implied, or exprefs.

Of

a Buikley vs. Lewis Sup. C. Hartford, 1791

Idem.

1. Cf implied contracts.

Action of implied promife, or affumpfit, is a remedy of a very extenfive and beneficial nature, and much encouraged.

It is founded upon equitable principles and will lie in all cafes where the defendant is obliged by the ties of natural equity to refand, or pay money, which he may have received of the plaintiff, or for his ufe.

This action will lie in all cafes where one employs another to tranfad any bufinefs, or perform any work-and the law prefumes that the employer will pay the perfon employed, as much as he reafonably deferves; and if he neglects to make payment, he may bring his action on the implied promise, and aver that the defendant promifed to pay him as much as he reasonably deferved, and that his labour was worth fuch a particular fum, which the defendant has neglected to pay-but the estimation of his labour will be fubmitted to a jury, who will affefs fuch damages as they think the plaintiff merited.

This action will alfo lie where one takes up goods, or wares of a tradefman, without expressly agreeing for a price. There the law concludes that both parties did intentionally agree that the real value of the goods fhould be paid, and an action of affumpfit may be brought accordingly, if the vendee refufes to pay the value of the goods.

¿ This action will lie where a perfon has laid out and expended. his own money, for the ufe of another at his request, for the law implies a promife of repayment.

It will alfo lie upou a stated account between two perfons, for the law implies that he against whom the balance appears has engaged to pay it to the other; tho there be not any actual promife. Actions of affumpfit are therefore brought declaring that the plaintiff and defendant had fettled their accounts together, and that the defendant engaged to pay the plaintiff the balance, and has neglected to do it.

a By Ld. Mansfield, 2 Burr. 1072. quantum meruit, 3 Black. Com. 162. quantum valcbat, 3 Black. Com. 163. called infimul computallet.

This

b This is called an affumpfit upon a This is called an affumpfit upon a 4 Idem. ldem, 164. This is

This action will lie for the value of the ufe and improvement of lands upon a leafe parole, where there has been an actual perteption of the profits; and the ftatute of frauds and perjuries is ho bar to fuch action.

This action will lie to recover money paid under a miftake, or through the deceit of the other party.

As if an underwriter pay money on an infuratice of a hip, fuppofed to be loft, which afterwards arrives fafe, he fhall recover back the money fo paid.

It lies for the recovery of money paid on a confideration which happens to fail.

As where the plaintiff paid money to the defendant upon his promife to make him a leafe of land, and before the leafe was made the defendant was evicted, the plaintiff recovered his money by this action, the confideration not having been performed.

It lies to recover money paid to one acting under, or in purfu ance of a void authority.

As where one having letters of adminiftration, appointed the defendant his attorney to receive money owing to the inteftate, who received the fame and paid it over to adininftrator, afterwards a will appearing and the adininistration being repealed, action in favour of the executor against the attorney was held to lie, because he acted under a void authority.

It lies to recover money obtained from any one, by extortion, impofition, oppreffion, or taking an undue advantage of the party's fituation.

f As where the plaintiff having pawned plate to the defendant, for twenty pounds, at the end of three years came to redeem it, and tendered four pounds more than the legal interest for that time; the defendant refufed to take lefs than ten pounds, the plaintiff paid the ten pounds, and had his goods, and brought his action for the furplus of the legal interest fo extorted from him. It was objected that the plaintiff might have tendered legal intereft, and brought e Palm. 364.

X

a Rogers vs. Tracy, Sup. C. 1790. di Salk. 27. 2 Burr. 1012.

b2 Burr. foto. f a Strange. 915.

brought trover for the goods, and that the payment was voluntary and fo not injurious. But the action was held to be maintainable,becaufe the plaintiff might be in immediate want of his goods, and trover would not be a competent remedy-and becaufe the defendant took an advantage of his firuation, which deprived him of that freedom in the exercife of his will, which every perfon ought to poffels, when the rule that a voluntary act cannot be an injury, ought to apply.

So where the plaintiff's brother was a bankrupt, and she was induced by an agent for the defendant, a principal creditor to give him forty pounds to fign the bankrupt certificate, the money paid for that purpofe was allowed to be recovered back in this action, as oppreffively and unjustly extorted from the plaintif.

This action will lie to recover money which has been embez zled, or which any perfon has been defrauded of, by cheating, or otherwife. As where the nurfe to a perfon, when he died took money and went off, the administrator was allowed to bring his action for money received to his ufe. In fuch cafes, the owner fhall recover the property when embezzled, if he can identify it, tho not in the hands of the perfon embezzling it. As where the plaintiff's clerk embezzled notes and money, and paid them to the defendant in the infurance of tickets which was contrary to law, it was held that as these notes were not paid bona fide; but for an illegal confideration, and their identity could be traced, that the real owner should recover them.

с

If noney has been recovered in confequence of any judgment, or adjudication, if it fhould be reverfed as erroneous, the money may be recovered back again by this action.

d It is a clear principle that the merits of a judgment, can never be overhaled by an original fuit either in law or equity, till the judgment is fet afide or reverfed, it is conclufive as to the subject matter of it. But money may be recovered by a right and legal judgment, and yet the iniquity of keeping that money may be manifell upon grounds which could not be used by way of defence against the judgment. Therefore, whenever a perfon has recovered

money

• Dougl. 672.

Bull. N. P. 133.

Idem, 131.

d 2 Burr. 1009.