goods, and the other says, "If he do not pay, I will; or, I will see you paid;” he is not bound, unless his engagement is reduced into writing. In all such cases the question is, Who is the buyer, or to whom is the credit given? and who is the surety? and that question, from all the circumstances, must be ascertained by the jury; for if the person for whose use the goods are furnished be liable at all, any promise by a third person to discharge the debt must be in writing, otherwise it is void; and, in ascertaining the fact, whether the party promising intended only to come in aid of the liability of the person on whose account he promised, or to become himself immediately responsible, the court will not only pay attention to the expression used, but to the particular situation, circumstances, and general responsibility of the party promising.

The principal point in cases of this kind is, whether, or not, the party who is to be benefited by the promise is liable at all. If there is no liability, there is nothing to which the promise can be collateral, or in relation to which it can be regarded as an undertaking to answer for the debt, default, or miscarriage of another person. It must therefore, without such liability in a third person, be an original undertaking in the party promising, and will subject him to the payment; the case being out of the Statute of Frauds altogether, and of course no written evidence of the promise is necessary.

The distinction between the collateral and the original promise is exemplified by Lord Chief Justice Holt, in the case of Watkin . Perkins. If, says his lordship, A promise B, being a surgeon, that if he will cure D of a wound, he will see him paid; this is only a promise to pay if D do not, and therefore it ought to be in writing, to be within the Statute of Frauds. But if A promise in such a case, that he will be B's paymaster, whatever he shall deserve, it is immediately the debt of A, and he is liable without writing. In the case first put, it is clear that B will have a double remedy; in the second, the credit would be considered wholly given to the express promiser. And even if by subsequent circumstances D should render himself liable, such liability, not having existed or come into existence at the time of the promise, would not have any effect in varying the predicament of the first promiser; whose promise would still be good without writing. Again, if A promise B, that in consideration of his doing a particular act, C would pay. him such a sum, or that if C do not pay him such sum, he (A) will the same, that is no collateral promise, unless C is privy to the contract, and recognized himself as debtor also; but otherwise A is the sole debtor, and the statute is out of the case.

pay

Mutual promises to marry need not be in writing, for the statute relates only to agreements made in consideration of the marriage.

A lease not exceeding three years from the making thereof, and in which the rent reserved amounts to two-thirds of the improved value, is good without writing; but all other parole leases or

agreements for any interest in lands have the effect of estates at will only.

All declarations of trust, except such as result by implication of law, must be made in writing.

If a promise depend upon a contingency, which may or may not fall within a year, it is not within the statute: as, a promise to pay a sum of money upon a death or marriage, or upon the return of a ship, or to leave a legacy, by will, is good by parole; for such a promise may by possibility be performed within the year. But even a written undertaking, to pay the debt of another is void, unless a good consideration appear in the writing; and the consideration (if any) cannot be proved by parole evidence.

If a growing crop be purchased without writing, the agreement before part execution may be put an end to by parole notice.

In the first and third sections of the Statute of Frauds, the contracts must be signed by the party, or his agent authorized by writing; but the agreements specified in the fourth section must be signed by the party, or some one by him lawfully authorized; and the words by writing are there omitted. And Lord Redesdale has said upon this, that at all times (as well before the act as since) it was necessary to have an authority in writing for creating or passing any estate in land for another; it was otherwise as to contracts which passed no estate. Therefore an agent authorized by parole may make such a written agreement for his principal, as will be sufficient for a court of equity to decree a specific perform

ance of.

A court of equity will decree a specific performance of a verbal contract, when it is confessed by a defendant in his answer, or when there has been a part performance of it, as by payment of part of the consideration money, or by entering and expending money upon the estate; for such acts preclude the party from denying the existence of the contract, and prove that there can be no fraud or perjury in obtaining the execution of it. But Lord Eldon seems

to think, that a specific performance cannot be decreed, if the defendant in his answer admit a parole agreement, and at the same time insist upon the benefit of the statute.

If one party only sign an agreement, he is bound by it; and if an agreement be by parole, but it is agreed it shall be reduced into writing, and this is prevented by the fraud of one of the parties, performance of it will be decreed.

CHAPTER XI.

Of Assumpsit.

An assumpsit is an implied contract, by which one man is bound to do justice to another, upon the principle of natural reason and the just construction of law. Thus

1. If I employ a person to transact any business, or perform any work for me, the law implies that I undertook or assumed to pay him so much as his labour 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. 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 refuse to pay that value.

3. A third species of implied assumpsits is, when one has had and received money belonging to another 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 owner. And if he unjustly detain it, an action on the case lies against him, for which he will recover damages. 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.

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.

If a surety in a bond pay the debt of a principal, he may recover it back from the principal in an action of assumpsit, for so much money paid in advance to his use. Yet in ancient times this action could not be maintained: and it is said, that the first case of the kind, in which the plaintiff succeeded, was tried before Mr. Justice Gould, at Dorchester. But this is perfectly consistent with the equitable principles of an assumpsit.

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 have been made up, then the legal remedy is by bringing a writ of account, de computo; commanding the defendant to render a just account to the plaintiff, or shew the court good cause to the contrary. In this action, if the plaintiff succeed, 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, 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 the 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 just 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 accrue to individuals, they have therefore their remedy and damages by a special action on the case. A few instances will fully illustrate this matter:

If an officer of the public be guilty of neglect of duty, or a palpable breach of it, of nonfeasance, or of misfeasance; as, if the sheriff do not execute a writ sent to him, or if he wilfully make a false return thereto; in both these cases the party aggrieved shall have an action on the case.

If a sheriff or gaoler suffer 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. But if, after judgment, a gaoler or a sheriff permit 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 on the equity of the statute of Westm. 2. 13 Edw. I. c. 11. and 1 Ric. II. c. 12.

An advocate or attorney who betrays the cause of his client, or being retained neglects to appear at the trial, by which the cause miscarries, is liable to an action on the case, for a reparation to his injured client.*

There is also in law always an implied contract, with a common innkeeper, 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.

But if I employ a person to transact any of these concerns, whose common profession or 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 innkeeper or other victualler hang out a sign, and open 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 refuse to admit a traveller.

If any one cheat 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,

In contracts likewise for sales, it is constantly understood that the seller undertakes that the commodity he sells is his own; and if it prove 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 do 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. 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, 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 time of buying him, not that he will be sound two years hence.

It has been decided at Nisi Prius, that no action can be maintained against an advocate for ignorance, misconduct, or for neglecting to appear at the trial, by which the cause has miscarried, The client must rely only upon his advocate's honour. Peake, N.P. 96, 122. But, in such cases, if complaint be made to the court in which the advocate practises, it can censure him, order him to pay the costs, or perhaps disbar him."