[*301] promised,” which always appeared in the declaration. When the uniformity of process act Q. B. 511, 43 E. C. L. R.) was upheld, and in which Tindal, C. J. said, "There is a large class of cases in which the foundation of the action springs out of privity of contract between the parties, but in which, nevertheless, the remedy for the breach or non-performance is indifferently either assumpsit or case upon tort, is not disputed. Such are actions against attorneys, surgeons, and other professional men, for want of competent skill or proper care in the service they undertake to render actions against common carriers, against ship-owners on the bills of lading, against bailees of different descriptions; and numerous other instances occur in which the action is brought in tort or contract at the election of the plaintiff: and, as to the objection that this election is only given where the plaintiff sues for a misfeasance, and not for a nonfeasance, it may be answered, that in many cases it is extremely difficult to distinguish a mere nonfeasance from a misfeasance; as in the particular case now before us, where the contract stated in the declaration on the part of the broker is, in substance, to deliver the goods of the plaintiffs to the purchaser on payment of the price in ready money, and where, if the broker delivers without receiving the price, the breach of his direct undertaking is as much a wrongful act done by him, that is a misfeasance, as it is a nonfeasance, the distinction between the two being, in that case, very fine and scarcely perceptible. But, further, the action of case upon tort very frequently occurs where there is a simple nonperformance of the contract, as in the ordinary instance of case against ship-owners, simply for not safely and securely delivering goods according to their bill of lading; and as in the case of Coggs v. Bernard, 2 Ld. Raym. 909, where an undertaking is stated in the declaration as the ground of action; and to give no further instance, the case of Marzetti v. Williams, 1 B. & Ad. 415, where the decision, that the plaintiff was entitled to nominal damages without proof of any actual damage, rests entirely on the consideration that the action, an action on the case, was founded on a contract, not on a general duty implied by law. The principle in all these cases would seem to be that the contract creates a duty, and the neglect to perform that duty, or the nonfeasance, is a ground of action upon a tort.' 991 1 It was, however, correctly said, arg., in the recent case of Courtenay v. Earle, 1 Eng. Law & Eq. R. 337, that "a line must be [*302] was passed, the schedule contained a form of There is, besides, a sort of action called an account, Leecom! In the case of Russell v. Bell, 10 M. & W. 340, after a bankruptcy, 85 bundles of yarn, of the value of 1147., were delivered by the bankrupt to the defendants, as they alleged, to meet an accommodation bill which they were about to give the bankrupt. The goods were accompanied by an invoice, which stated them to be bought by the defendants of the bankrupt, and it was held that where a man gets hold of goods without any actual contract, the law allows the owner to bring assumpsit. "Here," says Lord Abinger, "the bankrupt is selling goods under false colours, in order to cover transactions he knew he could not otherwise cover, and has no right to set up his own fraudulent contract. But the action being brought for goods sold and delivered by the assignees, and not by the bankrupt, the assignees have a right to waive the tort, and bring an action of assumpsit for goods sold and delivered." drawn somewhere, for it is clear that a count for goods sold and a count for slander cannot be joined," and in that case it was held that where a count for trover was joined with counts setting forth certain promises of the defendant not connected with any common law duty arising from the relation between plaintiff and defendant, and alleging a breach in the non-performance of these promises, the declaration was bad for misjoinder. 1 It is believed to be not quite correct, that in every case in which a man tortiously gets hold of property of another, the latter may waive the tort and bring assumpsit, as it seems to be generally settled that unless the property has been sold, or is, in some shape, in money or its equivalent, assumpsit will not lie; Willet v. Willet, 3 Watts, 277; Jones v. Hoar, 5 Pick. 285; Gilmore v. Wilbur, 12 Pick. 120; Allen v. Ford, 19 Pick. 217; Stearns v. Dillingham, 22 Vermont, 624. which was for a long time almost completely obsolete and disused, but within the last few months has risen again into some little importance in consequence of a decision of the Court of Exchequer, which I will presently mention. (a) *Now, these being the remedies by which [*303] contracts are enforced in courts of law, the next question (b) is, as to the time within which those reme (a) The case here alluded to is that of Inglis v. Haigh, 8 M. & W. 769. See post, p. 315. There must be either a privity in deed by the consent of the party, or a privity in law, as in the case of a guardian, in order to maintain an action of account. By statute 4 Ann, c. 16, s. 27, an action of account may be maintained by one joint-tenant, or tenant in common, his executors or administrators, against the other, as bailiff, for receiving more than his share or proportion; and against the executors or administrators of such joint-tenant or tenant in common. It is broadly laid down in Selwyn's Nisi Prius, vol. i. p. 3, that where there is a running account between a merchant and broker, the proper remedy for recovering the balance is by an action of account, not of assumpsit; "but this is not so; an action of account resembles a bill in equity for enforcing the execution of a trust. The first judgment is, that the defendant do account, which is commonly called a judgment quod computet; whereupon, the defendant offering to account, the court assigns auditors to take and declare the accounts between the parties; and then the final judgment is that the plaintiff do recover against the defendant so much as the latter is found to be in arrear." Neither in Selwyn nor in Buller is there a reference to any case where this action has been held to lie as between merchant and merchant. (Cottam v. Partridge, 4 M. & Gr. 271, 43 E. C. L. R.) This action neither lies against infants nor one executor against another. The first judgment, quod computet, is interlocutory, and not definite the defendant then usually offers to account, and the court assigns auditors, who are usually prothonotaries. (See Godfrey v. Saunders, C. B., 3 Wils. 73.) The final judgment is that the plaintiff do recover against the defendant so much as he, the defendant, is found in arrear. A writ of error lies upon this last judg ment only. (b) The remedies on each class of contract will be further noticed in treating of the subject-matter of contracts. (See APPENDIX.) dies are to be pursued; and those times depend upon the provisions of the acts of parliament which we call Statutes of Limitation. *The policy of the legislature in enacting such statutes, and thereby constituting a time [*304] after the lapse of which engagements shall be no longer capable of being enforced, has always been considered unexceptionable.' it slabeefe When you find a debt or an engagement existing Cli after the lapse of a long period of time, it is possible, indeed, that strict justice may require its enforcement, but it is also possible that great injustice may be done by enforcing it. Suppose, for instance, an executor finds a bond forty years old in his testator's repository; may be that the principal and interest are due and unpaid, but it may also be that they have been paid, or that great part has been paid, and that the vouchers have been lost; or it may be that the bond was deposited with the testator as a collateral security, and that no liability ever in reality accrued upon it, but that the obligee forgot to reclaim it or died pending the suretyship, leaving his representatives in ignorance of the transaction. It may be quite impossible after the lapse of forty years to prove this. Indeed it may be in the knowledge of no person living. Now there would be the greatest hardship in calling upon a man after the lapse of an indefinite space of time to defend himself against such a demand, but there is no great hardship imposed on the obligee by requiring him to enforce his claim within a reasonable time if he intend to enforce it at all. 'It may, however, be remarked that the earlier cases, on both sides of the Atlantic, showed a much greater facility in giving effect to acknowledgments whereby to take the case out of the statute, than has been recently the case. Indeed it has been often said that the older cases looked at the statute "with great disfavor." OTHE [305] This, then, is the policy of the Statutes of Limitation-to prevent obsolete claims from being [*305] raked up. And now as to the time which the legislature has appointed for the purpose of pursuing the several remedies of which I have spoken.' With regard to scire facias, there was, for a long while, no limitation imposed by statute to the commencement of that proceeding; but now, by 3 & 4 W. 1833-4 4, cap. 42, sect. 3, a scire facias on a recognisance must 20 be sued out within twenty years. (a) An action of debt founded upon a contract made by deed was also not till very lately subject to any limitation in respect of the time within which it might be commenced not that you are to suppose that there was practically no security against an obsolete claim founded on a deed, for the courts had introduced a presumption that such claims were satisfied after the lapse of twenty years; and if no evidence of any acknowledgment of the existence of the claim appeared to have taken place at that time, they recommended the jury to presume payment or a release, as the nature of the case happened to require; but there was no statute which could be pleaded in bar of such action until the *3 & 4 W. 4, c. 52, the third section of which established the limitation of twenty years.(b) [*306] (a) Where an old judgment exists, a scire facias to revive it creates new rights, and the statute runs from it. Farrell v. Gleason, 11 Cl. & Fin. 702. (b) Sect. 3 enacts, "That all actions of debt for rent upon an indenture of demise, all actions of covenant or debt upon any bond or ! It is hardly necessary to observe, that although in perhaps most of the States the limitation acts are copied with more or less exactness from the statute of James, yet that their provisions are, in important particulars, of local application. The student may profitably refer upon this subject generally to Mr. Angell's treatise on Limita |