aver that his trouble was really worth fuch a particular fum, which the defendant has omitted to pay. But this valuation of his trouble is fubmitted to the determination of a jury; who will affefs fuch a fum in damages as they think he really merited. This is called an affumpfit on a quantum meruit. 2. THERE is alfo an implied affumpfit on a quantum valebat, which is very fimilar to the former; being only where one takes up goods or wares of a tradefman, without exprefsly agreeing for the price. There the law concludes, that both parties did intentionally agree, that the real value of the goods fhould be paid; and an action on the cafe may be brought accordingly, if the vendee refufes to pay that value. 3. A THIRD fpecies of implied affumpfits is when one has had and received money belonging to another, without any valuable confideration given on the receiver's part: for the law conftrues this to be money had and received for the use 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 unjustly detains it, an action on the cafe lies against him for the breach of fuch implied promife and undertaking; and he will be made to repair the owner in damages, equivalent to what he has detained in violation of fuch his promife. This is a very extenfive and beneficial remedy, applicable to almost every cafe where the defendant has received money which ex aequo et bono he ought to refund. It lies for money paid by mistake, or on a confideration which happens to fail, or through impofition, extortion, or oppreffion, or where any undue advantage is taken of the plaintiff's fituation P. 4. WHERE a perfon has laid out and expended his own money for the use of another, at his requeft, the law implies a promife of repayment, and an action will lie on this affumpfit, P 4 Burr. 1012. q Carth. 446. 2 Keb. 99. L 3 5. LIKEWISE 5. LIKEWISE fifthly, upon a ftated account between two merchants, or other perfons, the law implies that he against whom the balance appears has engaged to pay it to the other; though there be not any actual promife. And from this implication it is frequent for actions on the case to be brought, declaring that the plaintiff and defendant had fettled their accounts together, infimul computaffent, (which gives name to this fpecies of affumpfit) and that the defendant engaged to pay the plaintiff the balance, but has fince neglected to do it. But if no account has 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 fhew the court good cause to the contrary. In this action, if the plaintiff fucceeds, there are two judgments: the first is, that the defendant do account (quod computet) before 'auditors appointed by the court; and, when fuch account is finished, then the fecond judgment is, that he do pay the plaintiff fo much as he is found in arrear. This action, by the old common law, lay only against the parties themselves, and not their executors; becaufe matters of account rested folely in their own knowlege. But this defect, after many fruitless attempts in parliament, was at laft remedied by statute 4 Ann. c. 16. which gives an action of account against the executors and adminiftrators. But however it is found by experience, that the most ready and effectual way to settle thefe matters of account is by bill in a court of equity, where a difcovery 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 fettle his accounts, are now very seldom ufed; though, when an account is once ftated, nothing is more common than an action upon the implied affumpfit to pay the balance. F. N. B. 116. * Co. Litt. 90. 6. THE last class of contracts, implied by reason and conftruction of law, arifes upon this fuppofition, that every one who undertakes any office, employment, truft, 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 accrues to individuals, they have therefore their remedy in damages by a fpecial action on the cafe. A few inftances will fully illuftrate this matter. If an officer of the public is guilty of neglect of duty, or a palpable breach of it, of non-feafance or of miffeafance; as, if the fheriff does not execute a writ fent to him, or if he wilfully makes a false return thereof; in both these cafes the party aggrieved shall have an action on the cafe, for damages to be assessed by a jury. If a fheriff or gaoler fuffers a prifoner, who is taken upon mefne procefs (that is, during the pendency of a fuit) to escape, he is liable to an action on the cafe". But if, after judgment, a gaoler or a fheriff permits a debtor to escape, who is charged in execution for a certain fum; the debt immediately becomes his own, and he is compellable by action of debt, being for a fum liquidated and ascertained, to fatisfy the creditor his whole demand: which doctrine is grounded on the equity of the statutes of Westm. 2. 13 Edw. I. c. 11. and 1 Ric. II. c. 12. An advocate or attorney that betray the cause of their client, or, being retained, neglect to appear at the trial, by which the caufe mifcarries, are liable to an action on the cafe, for a reparation to their injured client *. There is also in law always an implied contract with a common inn-keeper, to fecure his guests goods in his inn; with a common carrier or bargemaster, to be anfwerable for the goods he carries; with a common farrier, that he shoes a horse well, without laming him; with a common taylor, or other workman, that he performs his business in a workmanlike manner: in which if they fail, an action on the cafe lies to recover damages for t Moor. 431. 11. Rep. 99. W fuch breach of their general undertaking. But if I employ a perfon to tranfact any of these concerns, whofe common profession and bufinefs it is not, the law implies no fuch general undertaking; but, in order to charge him with damages, a fpecial agreement is required. Also, if an inn-keeper, or other victualler, hangs out a fign and opens his house for travellers, it is an implied engagement to entertain all perfons who travel that way; and upon this univerfal affumpfit an action on the cafe will lie against him for damages, if he without good reafon refuses to admit a traveller. If any one cheats me with falfe cards or dice, or by falfe weights and measures, or by felling me one commodity for another, an action on the cafe alfo lies against him for damages, upon the contract which the law always implies, that every tranfaction is fair and honeft. In contracts likewife for fales, it is conftantly understood that the feller undertakes that the commodity he fells is his own; and if it proves otherwife, an action on the cafe lies against him, to exact damages for this deceit. In contracts for provifions it is always implied that they are wholesome; and, if they be not, the same remedy may be had. Also if he, that felleth any thing, doth upon the fale warrant it to be good, the law annexes a tacit contract to this warranty, that if it be not fo, he shall make compenfation to the buyer: elfe it is an injury to good faith, for which an action on the cafe will lie to recover damages ». The warranty must be upon the fale; for if it be made after, and not at the time of the fale, it is a void warranty: for it is then made without any confideration; 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 found at the buying of him; not that he will be found two years hence. But if the vendor knew the goods to be unfound, and hath ufed any art to difguife them, or if they are in any shape different from what he reprefents them to be to the buyer, this artifice fhall be equivalent to an express warranty, and the vendor is anfwerable for their goodness. A general warranty will not extend to guard against defects that are plainly and obviously the object of one's fenfes, as if a horse be warranted perfect, and wants either a tail or an ear, unless the buyer in this cafe be blind. But if cloth is warranted to be of fuch a length, when it is not, there an action on the cafe lies for damages; for that cannot be difcerned by fight, but only by a collateral proof, the measuring ite. Also if a horfe is warranted found, and he wants the fight of an eye, though this feems to be the object of one's fenfes, yet as the discernment of such defects is frequently matter of skill, it hath been held that an action on the case lieth, to recover damages for this impofition". BESIDES the fpecial action on the cafe, there is alfo a peculiar remedy, entitled an action of deceit, to give damages in fome particular cafes of fraud; and principally where one man does any thing in the name of another, by which he is deceived or injured; as if one brings an action in another's name, and then fuffers a non-fuit, whereby the plaintiff becomes liable to cofts: or where one obtains or suffers a fraudulent recovery of lands, tenements, or chattels, to the prejudice of him that hath right. As when by collusion the attorney of the tenant makes default in a real action, or where the fheriff returns that the tenant was fummoned when he was not fo, and in either cafe he loses the land, the writ of deceit lies against the demandant, and alfo the attorney or the sheriff and his officers; to annul the former proceedings and recover back the land. It alfo lies in the cafes of warranty before-mentioned, and other perfonal injuries committed contrary to good faith and honesty *. But an action on the cafe, for damages, in nature of a writ of brought upon these occafions'. e Finch. L. 189. f Salk. 611. g F. N. B. 95. h Law of nifi prius. 30. i Booth. real actions, 251. Raft. deceit, is more ufually And indeed it is the only " |