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for a capias ad computandum. By virtue of this writ the defendant may be taken in custody, when he must put in bail to answer the condemnation.”

3417. The auditors sit as a court having the power to hear all questions of law and fact which are presented to them ; 62 and if the matters offered by the defendant in discharge of the plaintiff's demands are disputed by the plaintiff, he may either demur or take issue before the auditors. As the proceedings

63 before them are in the nature of a new action, the first thing to be done is to ascertain what facts are put in issue. The plaintiff does not file a new declaration, but the defendant may plead new matter in discharge which he could not have before pleaded. In pleading before the auditors the following rules are to be observed :

Whatever might have been pleaded in bar to the action cannot be pleaded as a discharge before the auditors.

Except in the case of a release or plene computavit, if the party is once chargeable and accountable, he cannot plead in bar, but must plead before auditors; these exceptions are because a release and having fully accounted are total extinctions of the right of action of which the court is to judge; and even in these two cases they must be pleaded specially, and cannot be given in evidence on ne unques receivor.

Nothing can be pleaded before auditors which contradicts what has been formerly pleaded and found by the verdict, because, if this were allowed, there might be two contradictory verdicts which would perplex the court, or two similar verdicts which would be nugatory.56

If the matters offered by the defendant in discharge of the plaintiff's demands are disputed by the plaintiff, he may either demur or take issue before the auditors. When there are more points in dispute than one, there may be

. a demurrer or an issue on each, and they are to be certified by the auditors to the court, and then the matters of law are decided by the court and the matters of fact by the jury. After this has been all finally settled, the result is returned to the auditors, who settle the account accordingly.5

If on the trial of the issue the plaintiff makes default, he shall be nonsuited; but he is not without remedy, for he may have a just claim, and the default may have been unavoidable. He may bring a scire facias ad computandum.57

In the examination of the case the auditors are authorized to take all articles of account between the parties incurred since the commencement of the suit, and the whole is to be brought down to the time when they make an end of the account. But after a judgment quod computet, rendered against a receiver

58 upon confession, if the auditors certify issues to be tried, the plaintiff upon trial of such issues cannot give evidence of moneys received by the defendants during any other period than that described in the declaration, for the defendant confessed no more.

3418. The very object of appointing auditors is to procure an account showing a balance in favor of one of the parties. They are, therefore, required to

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61 Keppele v. Keppele, 3 Yeates, Penn. 83, 84.
52 Parker v. Avery, Kirb. Conn. 353; Wood v. Barney, 2 Vt. 369.
68 Crousillat v. McCall, 5 Binn. Penn. 438.

Godfrey v. Saunders, 3 Wils. 113.
56 Godfrey v. Saunders, 3 Wils. 314; Spear v. Newell, 2 Paine, C. C. 267.
56 Crousillat v. McCall, 5 Binn. Penn. 433, 438.
57 Wheaton's Selwyn, Nisi P. 5.
58 Robinson v. Bland, 2 Burr. 1086; Couscher v. Tulam, 4 Wash. C. C. 442.
59 Sweigart v. Lowmárter, 14 Serg. & R. Penn. 200.

Finney v. Harbeson, 4 Yeates, Penn. 514.
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make out an account showing the state of indebtedness on either side; but if they file such an account, it is not objectionable that they report that the plaintiff has no legal demand at present against the defendant.” 61 But a report stating simply that the defendant “ has fully accounted” is bad.2

3419. The auditors are subject to the supervisory power of the court, who may correct abuses or any improper conduct of the auditors. If, therefore, , either party has cause of complaint against the auditors, there is no mode of redress but by complaint to the court; and when there is just cause of complaint, the court are bound to give redress; thus, if either party offer to join an issue, and the auditors refuse permission, or if the auditors conduct themselves with any manner of impropriety, to the injury of either party, redress

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be had by application to the court.63

3420. The final judgment is in favor of the plaintiff or of the defendant. In both cases it depends upon the report of the auditors; for when this is clear of fraud, and has been made according to law, it is, like the verdict of a jury, the foundation on which the judgment rests.

3421. When the report certifies that the defendant has refused to account, judgment is entered that the plaintiff recover according to the value mentioned in his declaration, and there will be a similar result where he gives an imperfect account. In these cases the judgment is for the whole amount of the claim, and there is no occasion for a writ of injury to ascertain the value. 64

If the report contain an account and a balance in favor of the plaintiff, the final judgment is that the plaintiff recover against the defendant so much as the defendant is found in arrear.

3422. If the report of auditors be in favor of the defendant, it seems doubtful whether a judgment can be entered for him on the report.

But he may bring an action of debt against the plaintiff for the sum in which he was found to be a creditor.67

3423. It is a general rule that a writ of error lies on the final judgment of a court of law. The final judgment in account render may therefore be tested by proceedings in error. If found erroneous, it may be reversed, but such reversal shall not affect the first judgment if that be not incorrect. And if the second judgment be reversed, a capias ad computandum may issue to compel the defendant to account again. But as the last judgment stands on the first, if such first judgment be reversed, the second must follow the same fate.

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61 Couscher v. Tulam, 4 Wash. C. C. 442.

62 Spencer v. Usher, 2 Day, Conn. 116. As under the state laws auditors may be appointed in many actions besides the action of account render, we may state here some of the rules in reference to the report. It has been said in several cases that the report is conclusive as to facts. Bacon v. Vaughn, 34 Vt. 73; White's Appeal, 36 Penn. St. 134; Whitehead v. Perie, 15 Tex. 7; Colgrove v. Rockwell, 24 Conn. 584. It may well be doubted, however, whether any such power can be given under the constitutional provisions as to trial by jury. The extent of the decisions in this direction is that when the reference is by agreement, the report may be conclusive, both parties having waived a jury. But when the reference is made under a statute or rule of court without an express agreement, the report is at most primâ facie evidence of the facts found. Stone v. Aldrich, 43 N. H. 52; Leathe v. Bullard, 8 Gray, Mass. 545. It may be read in evidence by either party, or by order of the court, and may be contradicted by evidence adduced by the party reading it. Lull v. Cass, 43 N. H. 62; Clark v. Fletcher, 1 All. Mass. 53.

63 Crousillat v. McCall, 5 Binn. Penn. 438. 64 Croke, Eliz. 806.

65 Godfrey v. Saunders, 3 Wils. 94. The late Chief Justice Tilghman, in the case of Gratz v. Phillips, 5 Binn. Penn. 567, gives very sound reasons why the judgment in actions of account may be for eater damages than are laid in the declaration. His opinion well deserves a careful perusal.

66 Crousillat v. McCall, 5 Binn. Penn. 433.
67 McCall v. Crousillat, 3 Serg. & R. Penn. 7.
68 Croke, Eliz. 806, pl. 7.

Viner, Abr. Account, pl. 22.

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CHAPTER XIX.

ASSUMPSIT.

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3424. Definition.
8425–3434. In what cases assumpsit lies.

3425. On all contracts not under seal.
3426. It does not lie where a higher security exists.

3427. Where a sealed contract is superseded.
3428-3430. Where a contract is presumed in fact.

3429. This presumption may be rebutted.
3430. Goods sold and delivered.
3431. When a contract is presumed in law.
3432. When founded in equity without privity of contract.
3433. When founded on a waiver of torts.
3434. Money paid.
3435. The declaration in assumpsit.

3436. When the declaration must be general and when special.
3437-3441. The evidence in assumpsit.

3437. When a request must be alleged and proved.
3438. Effect of unlawful contracts.
3439. Privity of contract required.
3440. The plaintiff can recover only on the title declared on.
3441. When there are several plaintiffs or defendants.

3442. The judgment in assumpsit. 3424. The second kind of actions arising on contracts is the action of assumpsit, in more common use than any other. It may be defined to be an action for the recovery of damages for the non-performance of a parol or simple contract, or, in other words, a contract not under seal, nor of record, a circumstance which distinguishes this remedy from others. It is so called from the word assumpsit, which, when the pleadings were in Latin, was always inserted in the declaration as descriptive of the defendant's undertaking; within the meaning of the provisions of the statute of Westminster, it may be termed an action on the case, but now, when the case simply is mentioned, it signifies an action for the redress of a tort, and is in form ex delicto.

The action of assumpsit lies for money had and received to the plaintiff's use; for money paid for the use of the defendant; for money lent; for money due on an account stated, called an insimul computassent ; for goods sold and delivered; for work performed; for the use and occupation of the plaintiff's premises; and for many other cases.

The action may be for a sum certain and stated in the declaration, or for a sum to be governed by the proof; in the case of goods sold for their value or quantum valebant, in the case of work done, the value of the services quantum meruit.

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1 See Hammond, Nisi P. 4 to 23; 1 Viner, Abr. 270; Brooke, Abr. Action Sur le Case ; Comyn, Dig. Action upon the Case upon Assumpsit ; Bacon, Abr. Assumpsit; 3 Reeve, Hist. Eng. Law; 1 Chitty, Pl. 88; Browne, Actions, 318; Lawes, Pl. in Assumpsit.

3425. Assumpsit lies to recover damages for the breach of all contracts not under seal, whether written or not written ; the difference between written and unwritten contracts is not in the nature of the undertaking, but in the mode of proof. In regard to express contracts, little can be said. The question of performance or non-performance, and amount of damages, must be determined by the particular circumstances of each contract.

In many cases the plaintiff may recover outside of his special contract where this has been waived or rescinded; in this case he must declare generally instead of specially on the contract, as more fully explained hereafter. Thus, if without fraud the plaintiff fails to fulfil the terms of his contract, still he may recover the value of the part performance, if it has been accepted by the other party with a full knowledge of the breach. So if something additional is done, this may be recovered by proof of an additional contract in regard to it. But no additional or new implied contract can be set up as long as a special contract exists, covering the identical subject matter. And if the contract is entire, a plaintiff who has broken it cannot recover the value of his part performance, unless his breach has been acquiesced in by the other party.”

If the entire performance of a special contract is prevented by one party, the other party, who has partly performed it, may sue either to recover damages for the breach or in assumpsit for the value of his part performance.

3426. Assumpsit does not lie where the plaintiff has a security of a higher nature, for in such case he must found his action upon it, and his remedy is by debt covenant or other form suitable to the case. Thus assumpsit does not lie where there is an express contract under seal, or upon a judgment, though rendered in another state. It lies on an implied promise to discharge a legal obligation created by statute, unless some other remedy is expressly given.

3427. In some cases where an express contract under seal has been made, assumpsit may be the proper remedy. This happens when the specialty has been superseded by a parol agreement rescinding the agreement under seal. And the parol agreement may be implied as well as express. Such an agreement may be implied where both parties have consented to a variation in the manner of performance. Assumpsit may be maintained upon a parol agreement for a new consideration to pay a debt or perform an agreement under seal. But if there is no new consideration, the agreement is nudum pactum, and cannot support an action."

3428. In many cases the law raises a presumption of fact of the existence of an agreement from the acts done or suffered by the defendant. Thus, if money is lent, a promise to repay is presumed, or if the defendant occupies the plaintiff's land, a promise to pay rent is presumed. In some cases, however, no promise is presumed; thus, the law implies no promise to pay for services rendered by members of a family to each other, and no such contract will be implied unless the defendant has voluntarily done or suffered the acts from which a contract is sought to be implied. The plaintiff cannot make the defendant

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2 Bee Printing Co. v. Hichborn, 4 All. Mass. 63; Kelley v. Bradford, 33 Vt. 35; Dutro v. Walter, 31 Mo. 516; Dermott v. Jones, 23 How. 220.

3 Duncan v. Commissioners, 19 Ind. 154.
* Walker v. Brown, 28 Ill. 378; Lacroix v. Tourmillion, 15 La. Ann. 69.
6 Hansell v. Erickson, 28 Ill. 257 ; Henson v. Hampton, 32 Mo. 408.

6 Chamberlin v. Scott, 33 Vt. 80; Dibol v. Minott, 9 Iowa, 403; Mackubin v. Clarkson, 5 Minn. 247; Webster v. Wade, 19 Cal. 291 ; Sherman v. Champlain Co., 31 Vt. 162.

? Baird v. Blagrove, 1 Wash. C. C. 170; Knowlton v. Tilton, 38 N. H. 257.
8 Andrews v. Montgomery, 19 Johns. N. Y. 162.
• Hillsborough v. Londonderry, 43 N. H. 451.
10 Codman v. Jenkins, 14 Mass. 93.
Updike v. Titus, 2 Beasl. N. J. 151; Davison v. Davison, 2 Beasl. N. J. 246.

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his debtor against his will, and any thing he may do for the defendant without his knowledge gives him no claim for compensation, though it may be beneficial to him,'2 and when one claims compensation for services the defendant may show that such services are customarily rendered without compensation.13

3429. But this presumption of fact is not conclusive, and may be rebutted by circumstances showing the impossibility of the existence of any agreement or promise on the part of the defendant. Though assumpsit lies in general against one who uses and occupies the land of the plaintiff, it cannot be maintained against one who enters upon the land claiming a title to it adverse to that of the plaintiff. Such a claim made bona fide negatives the existence of any contract. The title to the land being the matter in dispute, the proper remedy is trespass or ejectment. But if the defendant occupies the premises by permission of the owner, a promise to pay rent will be implied from slight circumstances; and rent may be due, though the occupation was for some purpose not implying the payment of rent, if such purpose is not accomplished. Thus, if the defendant occupies land under an agreement to purchase, but finally abandons the agreement and surrenders the land, assumpsit for use and occupation may be maintained. If an agreement for the use and occupation of land is void by reason of being made on Sunday, assumpsit will lie on the agreement implied from the actual use and occupation.

3430. A purchaser of goods is of course presumed to be liable to pay for them at the price fixed by the contract, if there is one, otherwise, at their value, and assumpsit is the proper remedy. If a purchaser orders goods and only a part is sent, or if goods different from those ordered are sent, he is not obliged to receive them; but if he accepts them, the law implies a promise to pay for them independently of any express contract." And the same obligation is imposed upon one who, though an utter stranger to any contract of purchase, receives and uses property of another. 18 But to perfect this obligation it is necessary that the goods should be delivered and have come into the possession of the defendant. And in the absence of any contract it is necessary that the defendant should have taken possession of the goods as his own. The law will not enable the plaintiff by sending his property to a stranger unasked to impose upon him an obligation to pay for the goods or to be at the trouble and expense of returning the .

The count for goods sold and delivered is to be used only where there has been an actual delivery ; if the transaction is incomplete, the plaintiff must declare specially on the contract.19

3431. In many cases the law raises the presumption of a promise where, in fact, no promise exists. This is done where a legal obligation rests upon the defendant to pay the plaintiff

, or to perform the agreement sued upon. Thus, , for instance, where a husband wrongfully turns his wife out of doors, or a father wrongfully discards his children, and gives notice that he will not be responsible for any thing which may be furnished them, still the money may be recovered of him in an action of assumpsit, when necessaries, in the technical

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12 Zottman v. San Francisco, 20 Cal. 96; Webb v. Cole, 20 N. H. 490. 13 Fraylor v. Sonora Co., 17 Cal. 594.

Kittredge v. Peaslee, 3 All. Mas. 235; Folsom v. Carli, 6 Minn. 420; Phelps v. Conant, 30 Vt. 277.

15 Patterson v. Stoddard, 47 Me. 355; Watson v. Brainard, 33 Vt. 88; contra Stacy v. Vermont R. R., 32 Vt. 551.

16 Stebbins v. Peck, 8 Gray, Mass. 553.
17 Downs v. Marsh, 29 Conn. 409.
18 Hill v. Davis, 3 N. H. 384; Floyd v. Wiley, 1 Mo. 430.
19 Perdicaris v. Trenton Co., 5 Dutch, N. J. 367.

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