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Suits rela


Suits relating to real property, are the action of ejectment, the action for mesne profits, the action of waste, the writ of nuisance, ting to real the action of trespass on lands, and proceedings in partition.3 Personal actions are, account, assumpsit, covenant, debt, replevin, trespass, and trespass on the case. The action of detinue is abolished; and the action of annuity is quite obsolete.

Personal ac


Scire facias.


not called ac


Practice in


Scire facias is an action relating to both real and personal property.

Besides the actions above enumerated, there are certain remedies at law, which are not commonly called actions, but the proceedings in which are treated of in these volumes. These are, attachments against vessels; attachments against foreign corporations; attachments against absent or absconding debtors; against debtors confined for crimes; arbitrations; informations in the nature of quo-warranto; mandamus; prohibition; proceedings for the admeasurement of dower; and writs of error.

personal ac- All personal actions except replevin are brought for the recovery of a debt or for damages only. These actions having an almost invariable uniformity of proceedings, are of one kind, and are treated in the revised statutes as forming a single class. They embrace all the great and general rules and forms of practice, and where other actions differ from them in their proceedings, it is only from necessity, and to attain some peculiar end. The practice in these actions is therefore, for the greater part of it, common to all actions. For this reason it will be first treated of, and may be regarded as forming the main body of this work.

in real actions;


One of the suits relating to real property, viz: trespass on lands, so far as the practice in it is concerned, belongs to this and in other class of actions. . The other suits in relation to real property, as well as scire facias and replevin, and those proceedings at law which are not called actions, having each of them an individual practice, are treated of separately.

32 R. St. 302. P. 3. Ch. 5.
42 R. St. 553. P. 3. Ch. 8.
T. 17. s. 15.

52 R. St. 347. P. 3. Ch. 6.



Ex contrac

Personal actions are either ex contractu or ex delicto; tu, the former being founded on contract, the latter upon forcible or tortious injuries.-The actions of account, assumpsit, cov- and ex deenant and debt are ex contractu; replevin, trespass and trespass on the case, are ex delicto.





At common

At common law an action of account lay against a guardian in socage, bailiff or receiver, and by merchants in partner-A ship against each other as receivers, to compel an account of profits or moneys received by the defendant. The same action is by statute extended to joint tenants and tenants in common, and their executors and administrators, against their cotenants and their executors and administrators."

Extended by



Very important alterations have been made in this action by the following provisions of the revised statutes: "When any regulations action of account shall be brought by one or more partners against another partner, or by any joint tenant or tenant in common, or against any guardian, bailiff, receiver or otherwise, and judgment shall be rendered that the parties account, or that the defendant account to the plaintiff, the cause shall be referred to referees in the same manner, and subject to the same provisions, as herein prescribed in the case of a long account." After authorising the court to imprison a party, neglecting or refusing to account or to produce books and papers, until submission, the statute provides that "If the referees

6 Co. Lit. 172. a.

32. Willes Rep. 208.

1 Bac. Abr. 2. R. St. 385. P. 3. Ch. 6. T.
6. s. 49.

71 R. St. 750. P. 2. Ch. 1. T. 5. s. 9.



Fallen into


report a balance in favor of either party, and such report be confirmed, judgment shall be rendered thereon as in other cases of reference; and if they report that no balance is due either party, judgment shall be rendered against the plaintiff, with the like effect as upon a verdict.”9 We shall see hereafter that the action survives in all cases, to and against executors and administrators.

Account has fallen into disuse, the action of assumpsit, in cases where it will lie,10 and a bill in equity, having been found to be more convenient and beneficial remedies. But it may be doubted whether the improvements introduced by statute, and especially the examination of the parties under oath and the production of books and papers, the important advantages attending a bill in equity, will not cause this action again to be resorted to.11 11



Assumpsit is, on account of its origin, technically called an action on the case.-But as it is founded on contract, while all other actions on the case are founded upon forcible or tortious injuries, it is not now12 considered as belonging to that class When it lies. of actions. It lies to recover a compensation in damages for an injury sustained by the non-performance of a parol agreegreements. ment.-Agreements are distinguished into agreements or contracts by record, by specialty, and by parol, and the law does not recognize any other distinction.-If agreements are merely written and not specialties, they are parol agreements.

Kinds of a

Promise and consideration.

Agreements are composed of the promise or undertaking of the party, for a breach of which the action is brought, and of the consideration upon which such promise or undertaking is

92 R. St. 385. P. 3. Ch. 6. T. 6. s. 53.

1o See 2 Campb. Rep. 238. 5 Taunt. Rep. 431.432. a. 1 Marsh. Rep. 115.

11 See observations of Chancellor Kent 3 John. Ch. Rep. 361. 12 10 Mass. Rep. 36.

founded; a consideration, being necessary to support every promise which without it would be nudum pactum. The promise is sometimes expressed by the party and sometimes it is raised by implication of law. In the former case it is termed an express, in the latter an implied promise. A consideration in parol agreements is never implied by law except in bills of exchange, promissory notes, and foreign judgments in which a consideration is presumed.


Promises express or implied.

tion must be 14 sufficient;

must move from plain

The consideration must be sufficient; that is a consideration Consideraeither of benefit to the defendant, 13 or of benefit to a stranger,' or of damage or of loss sustained by the plaintiff'15 at the request of the defendant.16 It is a general principle that the consideration must move from the plaintiff.17 It must also be uff, &c. such as the party has power by law to perform.18 It must not at the time of making the promise have been past or executed, unless the act was done at the request either express or implied of the party promising.19 Mutual promises, if they Mutual proare concurrent and simultaneous, are a sufficient consideration for each other.20 A moral obligation is a sufficient consideration to support an express promise,21 although the law will not imply the promise.22


Moral obli


13 3 Term Rep. 24. 653.

14 Cro. Eliz. 194.


19 1 Roll. Abr. 11. pl. 1. (Q) pl. 6. 5 John. Rep. 85. 1 Saund. Rep.

4 East's Rep. 194. 10 John. 264. n. (1) Hob. Rep. 106. Dyer's

Rep. 240.

161 Taunt. Rep. 523. 1 Caines Rep. 45. 3 John. Rep. 100. 104. 5 Id. 277. 7 Id. 112. 12 Id. 385. 14 Id. 466. 15 Id. 281. 425. Cro. Eliz. 67. Cro. Car. 704. Taunt. Rep. 611. 1 Term Rep. 21. 8 Id. 610. 1 Selw. N. P. 32.

17 Str. Rep. 592. 1 Selw. N. P. 38. 5 Cranch's Rep. 150. 13 John. Rep. 496.

18 2 Lev. Rep. 161. 3 Term Rep. 22.

Rep. 272. 10 John. Rep. 243. 1
Caines Rep. 583. 7 John. Rep.

20 8 John. Rep. 304. 12 Id. 397.
21 7 John. Rep. 37. 14John. Rep.
178. Cowp. Rep. 548. 14 John.
Rep. 468. 378. 5 Taunt. Rep. 36.

Bull. N. P. 129. 147. 15 John.

Rep. 281.

222 East's Rep. 505. 12 John Rep. 352. 13 Id. 380.



general or special.

Assumpsit is in form either general or special; a distinction Forms of as- arising from the nature of agreements, and the mode of declaring upon them. Whenever the agreement, either in its promise or consideration, contains special circumstances which it is necessary to set forth in the declaration, the action is special assumpsit: but where the promise is for the payment of money, and the case is besides such that debt would lie, it is permitted to state the promise and consideration in general terms in the declaration, and the action is called general assumpsit. Assumpsit may in all cases be special; but where it is allowable the general form is to be preferred, and it is often expedient to join it with the special upon the same cause of action.

Common assumpsits.

Money counts.

Special as

For the same reasons that assumpsit is divided into general and special, that is, the difference in the modes of declaring, the general form of the action is itself again divided. These divisions which are called the common assumpsits are: First, the general indebitatus assumpsit, on a promise to pay a certain sum of money in consideration of an alleged indebtedness for lands or goods, &c. sold, exchanged, hired, used, or enjoyed, &c. or for necessaries, work, services, &c.: Secondly, the quantum meruit, on a promise to pay for the like considerations, without alleging the indebtedness, as much money as the plaintiff deserves to have: Thirdly, the quantum valebant, on a promise to pay as much money as lands, goods, &c. sold are reasonably worth: Fourthly, the insimul computassent, on a promise to pay the sum due on an account stated between the parties.

Besides the cases mentioned above, in which the general indebitatus assumpsit is brought, it is in this form of the action that monies lent and advanced to the defendant, or paid, laid out, and expended for his use, or had and received by him to the use of the plaintiff are sought to be recovered. Indebitatus assumpsit counts founded upon these considerations are commonly called money counts.

The instances in which special assumpsit may be brought what cases are too various to be enumerated. The following are the

sumpsit, in


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