implication and intendment of the courts of judicature, that every man hath engaged to perform what his duty or justice requires. Thus,

1. IF I employ a perfon to tranfact any bufinefs for me, or perform any work, the law implies that I undertook or affumed to pay him fo much as his labour deferved. And if I neglect to make him amends, he has a remedy for this injury by bringing his action on the cafe upon this implied affumpfit; wherein he is at liberty to fuggeft that I promised to pay him fo much as he reasonably deferved, and then to [163] aver that his trouble was really worth fuch a particular sum, 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 also 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 expressly 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 refufcs 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 person fo receiving promised 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 promise 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 re

medy,

medy, 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 ".

4. WHERE a perfon has laid out and expended his own money for the ufe of another, at his requeft, the law implies a promise of repayment, and an action will lie on this affumpfit (5)

5. LIKEWISE, fifthly, upon a stated account between two [164] 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 cafe 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 juft account to the plaintiff, or fhew the court good caufe to the contrary. In this action, if the plaintiff fucceeds, there are two judgments: the first

(5) If a furety in a bond pays the debt of the principal, he may recover it back from the principal in an action of affumpfit, for so much money paid and advanced to his ufe; yet in ancient times this action could not be maintained; and it is faid, that the first cafe of the kind, in which the plaintiff fucceeded, was tried before the late Mr. J. Gould at Dorchefter. But this is perfectly confiftent with the equitable principles of an affumpfit. 2 T. R.

105.

N 4

is,

[165]

Book III. 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; because matters of account rested folely in their own knowlege. But this defect, after many fruitless attempts in parliament, was at laft remedied by ftatute 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 fettle 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 used; though, when an account is once ftated, nothing is more common than an action upon the implied affumpfit to pay the balance.

6. THE laft clafs of contracts, implied by reafon and conAruction of law, arifes upon this fuppofition, that every one who undertakes any office, employment, truft, or duty, contracts with thofe who employ or entrust him, to perform it with integrity, diligence, and skill. And, if by his want of either of thofe 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 illustrate 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 falfe return thereof; in both thefe cafes the party aggrieved fhall have an action on the cafe, for damages to be affeffed by a jury. If a fheriff or gaoler fuffers a prifoner, who is taken upon mefne procefs (that

• Co. Litt. go.

• Moor. 431.

11 Rep. 99.

W

is, during the pendency of a fuit) to efcape, 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 afcertained, to fatisfy the creditor his whole demand: which doctrine is grounded on the equity of the ftatutes 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 (6). There is alfo in law always an implied contract with a common inn-keeper, to fecure his guefts goods in his inn; with a common carrier or bargemaster, to be anfwerable for the goods he carries (7); Cro, Eliz. 625. Comb. 69.

* Bro. Abr. t. parliament. 19. 2 Inft. 382.

x Finch. L. 138.

(6) It has been held, that an action could not be maintained against an advocate for neglecting to appear at the trial, by which the caufe mifcarried. The client muft rely only upon his advocate's honour. But in fuch a cafe I conceive if complaint was made to the court in which the advocate practices, it would cenfure him, or perhaps difbar him.

(7) In the cafe of Forward v. Pittard, 1 T. R. 27. it was determined that the carrier was liable for a lofs occafioned by a fire, which the jury exprefsly found was not owing to any negligence on the part of the carrier; and Lord Mansfield declared, that "by "the cuftom of the realm, that is, by the common law, a carrier "is in the nature of an infurer. It is laid down, that he is liable "for every accident, except by the act of God or the king's "enemies. Now what is the act of God? I confider it to mean "fomething in oppofition to the act of man, for every thing is "the act of God that happens by his permiffion; every thing, "by his knowledge. But to prevent litigation, collufion, and "the neceffity of going into circumstances impoffible to be un"ravelled, the law prefumes against the carrier, unless he fhews "it was done by the king's enemies, or by fuch act as could not "happen

with a common farrier, that he fhoes a horse well, without laming him; with a common taylor, or other workman, that

happen by the intervention of man, as ftorms, lightning, and tempefts. If an armed force come to rob the carrier of the "goods, he is liable; and the true reason is, for fear it may give room for collufion, that the mafter may contrive to be robbed "on purpose and share the spoil.”.

The fame is the law refpecting carriers on navigable rivers or the high feas, subject to restrictions by two acts of parliament. The 7 Geo. II. c. 15. provides that, if the lofs arises by the em bezzlement or dishonesty of the mafter or any of the mariners in the fhip, the owner fhall only be liable to the amount of the value of the fhip and freight. 1 T. R. 18.

The 26 Geo. III. c. 86. ftill farther provides, that the fhipowners shall not be liable for a lofs occafioned by a robbery or embezzlement committed by any person whatever without their privity beyond the value of the fhip and the freight.

And it exempts them from all liability to answer for a lofs oceafioned by fire, and alfo in the cafe of a robbery of gold, filver, watches, and precious ftones, unlefs the proprietor declare to the mafter or fhip-owners in writing the nature and value of fuch articles. But ftill many cafes occur, which the ship-owners think fo hard upon them, that they have made frequent attempts, but without fuccefs, to prevail upon the legislature to give them farther relief.

The rate of carriage being not only a compenfation for labour and the expence incurred, but also a premium of insurance for the fafe delivery of the goods entrufted to the care of the carrier, he may therefore make a fpecial contract, by giving notice that he will not be answerable for money or other valuable articles above a certain fum unless he has notice of them, and is paid an extraordinary fum for the infurance. But the carrier muft prove notice of this to the owner of the goods, in order to defend himfelf in an action, by proving that fuch notice was stuck up in a confpicuous part of the office, when the owner brought his goods, or that it was advertized in a Newspaper, which he was accuftomed to read; but the practice is now fo general, or perhaps univerfal, with the proprietors of ftage-coaches, that the jury will prefume that the owner of the article carried had notice upon the

flightest