ASS 



ajfumpfil. Wlien one becomes legallj' iinlcbtcd to another 

 tur goods fold, the law implies a promile that he \\ ill pay 

 the debt ; and if it be not paid, liulcblluliis ajfumpfil lies : and 

 the fame lies for gotids fold and delivered to a ilranger " ad 

 requifilioncm" of the defendant ; the price being agreed upon 

 and proved." I Danv. Abr. 26, 27. If a tenant, being in ar- 

 rcar lor rent, fettles an account of arrears with his landlord, 

 and promifts to pay him the fum in arrear, an afTiiinpfit lies 

 on this promife. I Rol. Abr. 9. If a man and ivoman, being 

 unmarried, inutnally promife to marry tach other, and after- 

 wards the, man marries another woman, by which he renders 

 himfelf incapable of performing his contract, an afl'iimpfit 

 lies, in which the woman fhall recover damages. Carter, 233. 

 There are, however, five cafes, fpccified by the flatutc of 

 frnuds and perjuries, 29 Car. II. c. 3. in which no verbal 

 promife will be fufficient ground of a6lion, without fome 

 note or memorandum in writing, figned by the party who 

 is to become chargeable. I. Where an executor or admiiiif- 

 trator promifes to anfvver damages out of his own cllate. 

 2. Where a man undertakes to anfvver for the debt, default, 

 ormifcarriage of another. 3. W^here any agreement is made, 

 upon confideration of marriage. 4. W^here any contrail or 

 fale is made of lands, tenements, or hereditaments, or any 

 interell therein. 5. Where there is any agreement that is 

 not to be performed within a year from the time ol its being 

 made. In all thefe cafes a mere verbal alTuniplit is void. 

 The confideration is the ground of the common action on 

 the cafe ; and ho fuch aftion lies again 11 a man for a promife, 

 where there is no confideration why he fliould make the 

 proniife. 



Bcfides exprefs contracts, there are others implied by law : 

 and thefe are fuch as reafon and jullice dictate, and which, 

 therefore, the law prefunies that evciy man has contracled to 

 perform : and, upon this prefumption, to become aufwerable 

 to fuch perfous as futfer by his non-ptrformance. Of this 

 nature 3.\-e,Jiij}, fuch as are necelTarily implied by the fun- 

 damental conllitution of government, to which every man 

 is a contracting party. Thus it is that every perfon is bound 

 and hath virtually agreed to pay fuch particular funis of 

 money, as are charged on him by the fentencc, or affelTed by 

 the interpretation of the law. By the fame principle^ of an 

 implied oiiginal contrail to fubmit to the rules of the com- 

 munity of which we are members, a forfeiture impofed 

 by the bye laws and private ordinances of a corporation up- 

 on any th-;t belong to the body, or an amercement fet in a 

 court-leet or court-baron upon any of the fuitors to the 

 court, create a debt in the eye of the law ; and fuch forfei- 

 ture or amercement, unpaid, works an injury to the party or 

 parties entitled to receive it, for which the remedy is by 

 atlion of debt. The lame reafon may with equal juilice b« 

 applied to all penal llatntes, or fuch ails of parliament that 

 inflicl a forfeiture for tranfgreffing the provlfions enailed by 

 them. A fcconil clafs of implied contrails are fuch as aril'e 

 from natural reafon, and the jult con'lrudion of law; and 

 this ckifs extends to all preiuniptivc undertakings or afltimp- 

 fits, which, though never perhaps atlually m?.kle, yet con- 

 ftantly arife from this general implication and intendment of 

 the courts of judicature, that every man hath engaged to 

 perform what his duty or juilice requires. Thus, if I em- 

 ploy a perfon to traufail any bufincfs for me, or to perform 

 any work, the law implies that I undertook or alTumed to 

 pay him fo much as his laboiu- defervcd. If I negleil to 

 make him amends, he has a remedy by au ailion on the cafe 

 upon this implied alfumpfit. The valuation of his trouble 

 IS fubniitted to the judgment of a jury, who will alTcls fuch 

 a fum ill damages as they think he really merited. This is 

 called an adumulit oil u " quantum meruit." There ii all'u an 

 Vol. III. 



ASS 



implied alTumpfit, on a " qiimifum valSat" fimilar to tlio for- 

 mer ; where one takes up goods or wares of a tradefman, 

 without exprefsly agreeing for the price. Here the law 

 concludes, that both parties did intentionally agree, that the 

 real value of the goods (liould be paid ; and an aiiion on the 

 cafe may be brought accordingly, if the vendee refufcs to 

 pay that value. Another fpecies of implied affumpfits is 

 when one has had and received money b-lotiging to another, 

 without any valut-ble confideration given on the receiver's 

 part ; for the law conllrues tliis to be money had and re- 

 ceived for the ufe of the owner only ; and implies that the 

 perfon fo receiving promifed and undertook to account for 

 it to the true proprietor. And if he iinjufUy detain it, an 

 ailion on the cafe lies againft him for the breach of fuch im- 

 plied promife, and undertaking ; and he will be made to re- 

 pair the owner in damages, equivalent to what he has de- 

 tained in violation of fuch prumifc." This is applicable to 

 almolt every cafe where the defendant lias received money, 

 which " ex cequo etbono" he ought to refund. 4 Burr. ioi2. 

 Moreover, when a perfon has laid out and expended his own 

 money for the life of another at his requell, the law implies 

 a promife of repayment, and an aftion will lie on tbis af- 

 fim-.pfit. Carth. 446. 2 Keb. 99. Alio, upon a ftated ac- 

 count between two merchants, or other perfons, the law im- 

 plies that lie againll whom the balance appears has engaged 

 to pay it to the other ; though there be no actual promife. 

 From this implication, ailions on the cafe are frequently 

 brought, decl.iring that the plaintiff and defendant had fet- 

 tled their accounts together, ^ 'vifumil cimpulajftnt" which 

 gives name to this Ipecies of affumpfit, and that the defend- 

 ant engaged to pay the plaintiff the balance, but has fince 

 neglecled to do it. Tlie lad clafs of contracts, implied 

 by reafon and conftruilion of law, arlfes upon the fup- 

 pofition, that any one who undertakes aay ollice, employ- 

 ment, trnft, or duty, contrails with thofe who employ or 

 entruft him to perform it with integrity, diligence, and 

 fkill ; and, if by his wanting either of thefe qualities, any 

 injury accrues to individuals, they have their rem.edy in 

 damages by a fpecial aition on the cafe. If a fherift' does 

 not execute a writ fent to him, or v.ilfuHy makes a falfe 

 return, the party aggrieved fliall in both cafes have an 

 ailion on the cafe for damages, to be affefied by a jury. 

 Moor, 43 1 . 2 Rep. 99. If a fiicriff or gaoler fafters a 

 priloner, taken upon mefne proccfs, or during the pendency 

 of a fuit, to cfcape, he is liable to an aition on the cafe ; 

 but if, after judgment, a debtor charged in execution for 

 a certain fum be permitted to efcape, a goaler or IherifF is 

 compellable by ailion of debt for a fum liquidated and 

 afeei tained, to fatisfy the creditor his whole deniand. llal. 

 Wcllm. 2. 13 Edw. I. c. 1 1, and i Ric. II. c. 12. 2 Inft. 

 382. An advocate or attorney betraying the caufe of their 

 client, or, being retained, neglecting to appear at the trial, 

 by which the caufe mifearrics, are liable to an ailion on the 

 cafe, for a reparation to their injured client. Finch L. 188. 

 There is alfo in law an implied contrail with a common 

 innkeeper, to fecure the goods of his gucft ; with a com- 

 mon carrier or barge-mailer,' to be aufwerable for the goods 

 he cariies ; witb a common farrier, that he iliocs a horfe 

 Well, without laining him ; with a common tavlor, or other 

 workman, that he performs his buiinelV in a workman-like 

 'manner ; in which if they fail, an aclioii un the cafe lies 

 fi.r the recovery of danrages for fuch breach of their gene- 

 ral undertaking. 11 Rep. 54. i Saund. 324. If an inn- 

 keeper, or other viilualler, hangs out a llgn, and open* 

 his houfe for travellers, it is an implied engagement to 

 entertain all perfons who travel that vs'ay ; and upon thi» 

 univerfal affumpfit au action on the cafe will lie againft hira 

 S t\>r 



