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is, that the defendant do account (quod computet) before auditors appointed by the court; and, when such account is finished, then the second judgment is, that he do pay the plaintiff so much as he is found in arrear. This action, by the old common laws, lay only against the parties themselves, and not their executors; because matters of account rested solely in their own knowlege. But this defect, after many fruitless attempts in parliament, was at last remedied by statute 4 Ann. c. 16. which gives an action of account against the executors and administrators. But however it is found by experience, that the most ready and effectual way to settle these matters of account is by bill in a court of equity, where a discovery 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 settle his accounts, are now very seldom used; though, when an account is once stated, nothing is more common than an action upon the implied assumpsit to pay the balance.
6. The last class of contracts, implied by reason and construction of law, arises upon this supposition, that every one who undertakes any office, employment, trust, 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 therifore their remedy in damages by a special action on the case. A few instances will fully illustrate this matter. If an officer of the public is guilty of neglect of duty, or a palpable breach of it, of non-feasance or of misfeafınce; as, if the sheriff does not execute a writ sent to him, or if he wilfully makes a false return thereof; in both these cases the party aggrieved shall have an action on the case, for damages to be affeiled by a jury' If a sheriff or gaoler fuffers a prisoner, who is taken upon mesne process (that
Co. Litt. 9o.
+ Moor. 431. 11 Rep. 99.
is, during the pendency of a suit) to escape, he is liable to an action on the case". But if, after judgment, a gaoler or a sheriff permits a debtor to escape, who is charged in execution for a certain sum; the debt immediately becomes his own, and he is compellable by action of debt, being for a fum liquidated and ascertained, to satisfy the creditor his whole demand : which doctrine is grounded on the equity of the sta utes of Westm. 2. 13 Edw. I. c. 11. and i Ric. II, 6. 12. An advocate or attorney that betray the cause of their client, or, being retained, neglect to appear at the trial, by which the cause miscarries, are liable to an action on the case, for a reparation to their injured client *. There is also in law always an implied contract with a common inn-keeper, to secure his guests goods in his inn; with a common carrier or bargemaster, to be answerable 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 case lies to recover damages for such breach of their general undertakingy. But if I employ a person to transact any of these concerns, whose common profession and business it is not, the law implies no such general undertaking; but, in order to charge him with damages, a special agreement is required. Also, if an inn-keeper, or other victualler, hangs out a sign and opens his house for trayeilers, it is an implied engagement to entertain all persons who travel that way; and upon this universal affumpfit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveller?. If any one cheats me with false cards or dice, or by false weights and measures, or by selling me one commodity for another, an action on the cafe also lies against him for damages, upon the contract which the law always implies, that every transa action is fair and honesta. In contracts likewise for sales, it is constantly understood that the seller undertakes that the commodity he sells is his own; and if it proves otherwise, an action on the case lies against him, to exact damages for this deceit. In contracts for provisions it is always implied that they are wholesome; and, if they be not, the same remedy may be had. Also if he, that selleth any thing, doth upon the sale warrant it to be good, the law annexes a tacit contract to this warranty, that if it be not so, he shall make compensation to the buyer: elfe it is an injury to good faith, for which an action on the case will lie to recover damages b. The warranty must be upon the fale ; for if it be made after, and not at the time of the sale, it is a void warranty": for it is then made without any consideration; 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 (5). But if the vendor knew the goods to be unround, and hath used any art to disguse them", or if they are in any shape different from what he represents them to be to the buyer, this artifice shall be equivalent to an express warranty, and the vendor is answerable for their goodness. A general warranty will not extend to guard against defects that are plainly and obviously the object of one's fenses, as if a horse be warranted perfect, and wants either a tail or an ear, unless the buyer in this case be blind. But if cloth is warranted to be of such a length, when it is not, there an action on the case lies for damages; for that cannot be dif
u Cro. Eliz. 625. Comb. 69.
Finch. 1. 128.
y 11 Rep. 54. 1 Saund. 324.
(5) There seems to be no reason or principle, why, upon a luf. ficient consideration, an express warranty that a horse thould continue sound for two years, thould not be valid. Lord Mansfield declared, in a case in which the sentence in the text was cited, “there so is no doubt but you may warrant a future event." Dong: 707.
cerned by sight, but only by a collateral proof, the measuring ito. Also if a horse is warranted sound, and he wants the fight of an eye, though this seems to be the object of one's fenses, 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 imposition f.
Besides the special action on the case, there is also a pe- ( 166 ) culiar remedy, entitled an action of deceits, to give damages in some particular cases 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 suffers a non-fuit, whereby the plaintiff becomes liable to costs : or where one obtains or suifers '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 sheriff returns that the tenant was summoned when he was not so, and in either case he loses the land, the writ of deceit lies against the demandant, and also the attorney or the sheriff and his officers; to annul the former proceedings and recover back the landi. It also lies in the cases of warranty before-mentioned, and other personal injuries committed contrary to good faith and honestyk. But an action on the case, for damages, in nature of a writ of deceit, is more usually brought upon these occasions!. And indeed it is the only ma remedy for a lord of a manor, in or out of antient demesne, to reverse a fine or recovery had in the king's courts of lands lying within his jurisdiction ; which would otherwise be thereby turned into frank fee. And this may be brought by the lord against the parties and celuy que use of . such fine or recovery; and thereby he shall obtain judgment
e Finch. L. 189.
Salk. 611. 3 F. N. B. 95. b Law of nifi prius. 30. i Booth. real actions, 251. Rast.
Entr. 221, 222, See pag. 405.
F. N. B 98.
not only for damages (which are usually remitted) but also to recover his court, and jurisdiction over the lands, and to annul the former proceedings".
Thus much for the non-performance of contracts express or implied; which includes every poslible injury to what is by far the most considerable species of personal property; viz. that which consists in action merely, and not in possession. Which finishes our inquiries into fuch wrongs as may be offered to personal property, with their several remedies by suit or action.
Ratt. Entr. joc. b. 3 Lev. 415. Lutw. 711. 749.