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Defence of Possession.] The burden of the proof under this plea lies on deft., who must prove all the facts stated in his special plea, sufficient to justify the assault. Deft. should show he was possessed of the premises in question, as by carrying on business, or living in the house: Cro. Car. 138. There does not appear any necessity for deft. to prove the title to the premises, though indeed this is disputed, ib. The deft. should prove that the plt. came into his premises either without his license, and upon no lawful occasion, or though for a lawful occasion, as into an inn, that, when there, he misconducted himself; and, upon being requested to depart, and plt.'s refusal or use of resistance or violence, dest. was obliged to use force to compel him so to do: Williams v. Jones, 2 Str. 1049; Green v. Goddard, 2 Salk. 641; Com. D. Pleader, 3 M. 16; Gregory v. Hill, 8 T. R. 299; Esp. Ev. 262; [Green y. Bartram, 4 Carr. &. Payne, 308.) If plt. has no right to be on premises, proof of a request to depart will suffice, without any other proof of plt.'s misconduct. If plt. attempt to enter deft.'s premises by force, proof of that fact supersedes the necessity of proving a request to depart: Weaver v. Bush, 8 T. R. 78. If deft. justifies as a servant, he must also prove that he was such servant, and in actual service at the time, and that his conduct was in discharge of his duty. See “Master and Servant."
Special Replication.] Under a special replication, all the preceding facts stated in the pleadings are admitted. The burden of supporting it lies on the plt., but deft. should be prepared to rebut it. See evidence under justification for imprisonment, and post, “ False Imprisonment.” As to evidence in reduction of damages, supra.
Competency of Witness: post, “Witness," ante, “ Admissions.”
its nature, and when it lies in general, 109.
FORM OF PLEADINGS IN:
Declaration, 111 to 138.
in general, 112.
I. SPECIAL COUNTS, STATING: 111 to 136.
121 to 130.
II. Common Counts: 136 to 138.
when to plead specially, ib.
Form of Plea, 139.
Commencement and Conclusion of Declaration, 139.
Quantum Meruit Count, ib.
Quantum Valebant Count, 140.
EVIDENCE FOR PLAINTIFF: 140 to 153.
under GENERAL Issue, 140 to 152.
that it was made with Plaintiff, 142 to 145.
that it was made by Defendant, 145 to 146.
Its Nature, and when it lies in general.] Assumpsit lies for the recovery of damages for the breach of simple contracts or promises; and
this, whether the contract or promise be express or implied, as the law always raises an obligation to do that which a party is legally liable to perform: Step. Pl. 16; Lamb v. Bunce, 4 M. L. S. 275. It cannot be supported unless there be such contract or promise. Particular instances as to when this action lies will be found in this work, when treating on the form of remedy under each title. As a general rule, it should be observed, that promises are, 1, to pay or repay money; or, 2, to do or forbear some other act : Step. Pl. 12, 16.
The first class occurs both in common and special assumpsits. In common assumpsits they are the indebitatus assumpsits: 1st. On a promise to pay a precedent debt for the sale, assignment, or use of lands, &c., the sale, exchange, or hire of cattle or goods, necessaries, or works and services; 2nd. The quantum meruit or valebant on a promise to to pay the plt. for the like considerations as much money as he deserved to have, or for his goods, &c. so much as they were reasonably worth; and, 3d. on the insimul computassent, on a promise to pay the sum due on an account stated. In special assumpsits they arise on a promise to pay money, in consideration of a legal liability to pay it, as upon a bill of exchange, foreign or inland, banker's draft, promissory note, by-law, or foreign judgment, or for a fine on admission to copyhold premises, legacy charged on land, toll, post-duty, contribution to party-walls. 2. On mutual promises either to pay money, as on wagers, or feigned issues; or to do some other act, as to marry, &c.; or to perform particular agreements, charter-parties, policies of assurance, or awards; the breach of which may consist either in the non-payment of money or non-performance of some other act: 3. On promises to pay money on considerations executed or executory; as in consideration of marriage, the sale, assignment, or use of lands, &c., tithes, the sale or exchange or hire of cattle or goods, necessaries, forbearance, works and services, or indemnity, which promises may be made either by the party benefited, or by third persons. Promises to repay money are either express or implied; the latter may be given in evidence under the common count for money had and received : Tidd, 23.
The second class occur only in special assumpsits, and are on promises to do or forbear some other act, as,-1. To sell, assign, or exchange lands, &c.; or, by or against landlord or tenant, to take, let, hold, repair, cultivate, or quit them: 2. Upon a sale or exchange of goods or cattle, to accept, deliver, take back, or return them; or upon a warranty as to their title, quality, or value: 3. Upon a bailment of goods or cattle to be kept, either generally or by way of pledge, concerning goods or cattle lent or let to hire; or against carriers, wharfingers, farriers, &c.; 4. To provide necessaries for plt. or for third persons : 5. To forbear to sue or give time for the payment of a debt: 6. To perform works, under which may be classed promises made by professional persons, as attorneys, surgeons, &c.; or respecting real or personal property : 7. Upon a retainer to serve or employ: 8. Respecting real or personal securities : 9. To account for the profits of lands, or for money or goods : 10. On promises of indemnity: Tidd, 2, 3.
When the only Remedy.) There are some cases in which assumpsit
is alone maintainable. Thus it is said to be the only remedy against executors and administrators for the breach of a simple contract, Barry v. Robinson, 1 N. R. 293; or for the recovery of money payable by
instalments, where the whole debt is not due, Rudder v. Price, [*110] 1 H. B. 550, 2 Saund. * 303, n. 6, Cooke v. Whorwood, ib. 337,
Peters v. Opie, ib. 350; or on a guarantee, Hard. 486, 2 Saund. 62, b. See “Bills Exchange," “ Award."
When sustainable where Plaintiff has a higher Security.) Assumpsit cannot, in general, be supported where a higher security has been given, either by instrument under seal or by record, as the simple contract on which alone assumpsit is sustainable is generally merged in such higher security: Acton v. Symond, Cro. C. 415; Twopenny v. Young, 3 B. &. C. 211, Bac. Ab. Debt, G., &-c.; Toussaint v. Martinnant, 2 T. R. 104; Drake v. Mitchell &. or., 3 East, 259; Schleneker v. Moxsy, 3 B. fo C. 792, 1 Chit. Pl. 91; Schack v. Anthony, 1 M. & S. 575; Leslie v. Wilson, 6 Moore, 425, n. post, “ Charter-party," " Freight." But the party may proceed in assumpsit on the original contract, and frequently on an implied contract, if the deed be inoperative or void; as from usury, 1 Saund. 295, a.; or under the Annuity Act, &c., Surfield v. Gowland, 6 East, 241; or from infancy, B. N. P. 182; or where there is a written contract relating to the matter, which cannot be read for want of a stamp: Fielder y. Ray, 4 Carr. & Payne, 61; or where a bankrupt gives a bond in satisfaction of a simple contract debt, after a secret act of bankruptcy : Ambrose v. Clendon, 2 Str. 1042. And assumpsit will lie where there has been a new contract, in respect of a new consideration to pay a debt or perform a contract under seal, White v. Parkin, 12 East, 578: as, on a promise to pay an assignee of a bond in consideration of forbearance, 1 Saund. 210, n. 1; or by a debtor in respect of any new consideration, Brett v. Read, Cro. Car. 343, Cro. El. 67; or by a third person, anon. Cowp. 129; or on a promise to the husband to pay the arrears of a rent charge, due to the wife in her lifetime, though the rent was secured by deed : anon. 1 Leon, 293, cited in Moor. som v. Kymer, 2 M: 8. S. 309. So, on a balance between partners, if one expressly promise to pay it, assumpsit lies, though they have covenanted to account, Foster v. Allanson, 2 T. R. 483; White v. Parkin, cited in 12 East, 582. And assumpsit lies where a simple contract has been substituted for a contract under seal, after the breach of the covenants therein, Heard y. Wadham, 1 East, 636, Innes y. Dunlop, 8
T. R. 595, Burn v. Miller, 4 Taunt. 748; and so where several things unconnected with the deed are included in the new contract: Schack v. Anthony, 1 M. &. S. 575; Foster v. Allanson, 2 T. R. 479; Davis v. Morgan, 4 B. &. C. 8; 6 D. &. R. 42. And if the binding be not mutual, as, where parties contract by deed, and plt. signs, but the deft. does not execute the deed, it will be no bar, but he may sue in assumpsit: Sutherland v. Lishnan, 3 Esp. Rep. 42. And assumpsit lies for use and occupation of a house, though there be an agreement by deed of lease; but it does not amount to an actual demise: Elliot v. Rogers, 4 Esp. Rep. 59. And assumpsit will lie on an implied contract where the deed is invalid, if there be sufficient evidence to imply a promise: as, where a husband covenanted with a trustee to pay his wife a certain separate
a imply done: White, died be givecarea C. to inity, and after
allowance, but neglected payment, it has been held, that the trustee may recover in assumpsit for necessaries supplied on the common law obligation, Nurse v. Craig, 2 N. R. 148, Mansfield, C. J., dissent.; as he thought the specific covenant excluded a ground in law for supporting an assumpsit on the presumed assent of the husband,” ib. 160: as, where an annuity has been set aside for a defect in the memorial, Waters v. Mansell, 3 Taunt. 56; and, where a feme covert contracted with a servant by deed, but without authority from the husband, it was held the law would imply a contract on the part of the husband to pay the servant for the work done: White v. Cuyler, 6 T. R. 176. Assumpsit lies on the simple contract, though a deed be given as a collateral security. Therefore, where B., being indebted to A., procured C. to join with him in giving a joint and several promissory note for the amount, and afterwards, having become further indebted, and being pressed by A. for further security by deed (reciting the debt and the note, and that a further security had been offered), assigned to A. all his goods as a further security, with a proviso, *that he should not be deprived [*1117 of the possession of the property assigned until after notice; it was held that the deed did not deprive A. of his remedy against C, on the note: Twopenny v. Young, 3 B. & C. 208; 5 D. & R. 259. Assumpsit sometimes lies for moneys accruing, due under the provisions of a statute, 1 Saund. 37, B. N. P. 129, Rann v. Green, Cowp. 474, post, “ Statute;" and, as to when it lies on a judgment, post, “Judgment.”
When Sustainable, though Defendant guilty of a Tort.] Assumpsit will lie for a nonfeasance, misfeasance, or malfeasance, Samuel v. Judin, 6 East, 335; for, where deft. has been guilty of tortious neglect of his duty, plt. may waive the tort, and rely on the circumstances, as forming a breach of promise, implied from some consideration of reward, &c.: Govett v. Radnidge, 3 East, 70; Edmeads v. Newman, I B. &. C. 418, 423; 2 D. 4. R. 568; Morgan v. Palmer, 2 B. & C. 735, 6; 4 D. & R. 283. Therefore, assumpsit lies for goods, which the deft. had, by fraud, procured the plt. to sell to an insolvent, and which the dest. had got into his own possession; for he could not set up the sale, because his own fraud had procured it; and the mere possession, unaccounted for, is sufficient to raise an assumpsit: Hill v. Perrott, 3 Taunt. 274; post, “ Money Had and Received.” Where there is no certain duty or contract, express or implied, arising from the circumstances of the tort, Mayor of Northampton v. Ward, 1 Wils. 107, 9, and therefore, where the possession is adverse, assumpsit will not lie for use and occupation, but plt. must declare in ejectment or trespass: Birch v. Wright, i T. R. 378, 387. So, where deft. enters plt.'s close or market, and erects a stall without license, assumpsit will not lie: trespass is the proper remedy: Mayor of Northampton v. Ward, 1 Wils. 109. And, where cattle are taken damage feasant, and money paid for their release, assumpsit cannot be supported to recover it, but trover, trespass, or replevin, are the proper forms: Lindon v. Hooper, Cowp. 415; Shipwick v. Blanchard, 6 T. R. 298. And, in case of deceit, where there is a written contract, and it is apparent on the face of it, assumpsit will not lie, but the party must bring case for the deceit