cause they are given to the people in general.

Sometimes one part

is given to the crown, to the poor, or to some public use, and the other part to the informer or prosecutor: and then the suit is called a qui tam action, because it is brought by a person, “qui tam pro domino rege, &c., quam pro se ipso in hâc parte sequitur.”

A second class of implied contracts are such as do not arise from the express determination of any court, or the positive directions of any statute; but from natural reason, and the just construction of law. Which class extends to all presumptive undertakings or assumpsits; which though never perhaps actually made, yet constantly arise from this general implication and intendment of the courts of judicature, that every man has engaged to perform what his duty or justice requires. Thus,

1. If I employ a person to transact any business for me, or perform any work, the law implies that I undertook or promised to pay him so much as his labour deserved. And if I neglect to make him amends, he has a remedy for this injury by bringing his action upon this implied assumpsit; wherein he is at liberty to suggest that I promised to pay him so much as he reasonably deserved, and then to aver that his trouble was really worth such a particular sum, which the defendant has omitted to pay. But this valuation of his trouble is submitted to the determination of a jury, who will assess such a sum in damages as they think he really merited. This is called an assumpsit on a quantum meruit.

2. There is also an implied assumpsit on a quantum valebat, which is very similar to the former, being only where one takes up goods or wares of a tradesman, without expressly agreeing for the price. There the law concludes, that both parties did intentionally agree, that the real value of the goods should be paid; and an action may be brought accordingly, if the vendee refuses to pay that value. This action is usually either for “goods bargained and sold,” or for “goods sold and delivered." The former action lies where the property in the goods has passed to the defendant, though there has been no actual delivery to him, nor any actual acceptance by him: the latter where the goods have been actually or constructively delivered, as where the latter has put it in the purchaser's power to take them, or in the case of goods parted with “on sale or return," where the purchaser has not returned them within a reasonable time.

The converse of the action for the goods bargained and sold is that by the vendee against the vendor, for his breach of contract in not delivering the goods.

3. A third species of implied assumpsits is when one has had and

received money belonging to another, without any valuable consideration given on the receiver's part: for the law construes this to be money had and received for the use of the owner only; and implies that the person so receiving promised and undertook to account for it to the true proprietor. This is a very extensive and beneficial remedy, applicable to almost every case where the defendant has received money which ex æquo et bono he ought to refund. It lies for money paid by mistake or on a consideration which happens to fail, or through imposition, extortion or oppression, or where any undue advantage is taken of the plaintiff's situation.

4. Where a person has laid out and expended his own money for the use of another, at his request, the law implies a promise of repayment, and an action will lie on this assumpsit.

5. Likewise, fifthly, upon a stated account between two merchants or other persons, the law implies that he against whom the balance appears has engaged to pay it to the other; though there be not any actual promise. And from this implication it is frequent for actions. to be brought, in which the plaintiff sues for money found to be due to him from the defendant on accounts stated between them, the legal effect of these words being an allegation, that the plaintiff and defendant had settled their accounts together, insimul computassent, which gave the name to this species of assumpsit, and that the defendant engaged to pay the plaintiff the balance, but had since neglected to do it.

If no account has been made up, then the more technical legal remedy is by bringing an action of account, de computo; but it is found by experience, that the most ready and effectual way to settle these matters is by suit in a court of equity.`

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 therefore their remedy in damages by an action. A few instances will fully illustrate this matter. If an officer of the public is guilty of neglect of duty, or of a palpable breach of it, of non-feasance or of mis-feasance; 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 for damages to be assessed by a jury. If a sheriff or gaoler suffers a prisoner, who is taken upon mesne process, that is, during the pendency of a suit, to escape, he is liable to an action. So if, after judgment, a gaoler or a sheriff permits a debtor to escape, who is charged in execution, 'he

is liable to the creditor in the damages, which the creditor has thereby sustained. An attorney that betrays the cause of his client, or being retained, neglects to appear at the trial, by which the cause miscarries, is liable to an action for a reparation to his injured client. There is also in law always an implied contract with a common innkeeper, to secure his guest's 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 tailor, or other workman, that he performs his business in a workmanlike manner; in which, if they fail, an action ́lies to recover damages for such breach of their general undertaking. 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 innkeeper, or other victualler, hangs out a sign, and opens his house for travellers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action 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 also lies against him for damages, upon the contract which the law always implies, that every transaction is fair and honest.

In contracts likewise for the sale of goods in a shop, it is understood that the seller undertakes that the commodity he sells is his own, and if it proves otherwise, an action lies against him, to exact damages for this deceit. But except in special circumstances, as when the vendor affirms, directly or indirectly, that the goods sold are his property, there is no implied warranty of title on the sale of goods. Though, if the article be bought expressly for a particular purpose, there is an implied warranty that it shall be reasonably fit for that purpose. Thus in contracts for provisions, it is always implied that they are wholesome; and if they be not, an action will lie.

Nor does the law in general imply any warranty by the seller as to the quality of goods sold by him. The rule is caveat emptor, so that no liability is incurred by the seller by reason of bad quality or defects, unless there be an express warranty or fraud. But if he that sells anything does 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: else it is an injury to good faith, for which an action will lie to recover damages. The warranty must be upon the sale; 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 con

sideration; neither does the buyer then take the goods upon the credit of the vendor. But if the vendor knew the goods to be unsound, and has used any art to disguise 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 senses, 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 lies for damages; for that cannot be discerned by sight, but only by a collateral proof, the measuring it. Also if a horse is warranted sound, and he wants the sight of an eye, though this seems to be the object of one's senses, yet as the discernment of such defects is frequently matter of skill, an action lies to recover damages for this imposition.

Thus much for the non-performance of contracts express or implied; which includes every possible 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 such wrongs as may be offered to personal property, with their several remedies by suit or action.

CHAPTER VII.

OF INJURIES TO REAL PROPERTY; AND, FIRST, OF DISPOSSESSION, OR OUSTER.

Of possession: Right of possession; right of property; writs of entry; writ of assize; writ of right.-Old action of ejectment; its history; confession of lease, entry, and ouster, in order to try title;-modern writ of ejectment; damages in ejectment ;-ejectment by landlord.

I COME now to consider the injuries that affect real property, which are principally six: I. Ouster; II. Trespass; III. Nuisance; IV. Waste; V. Subtraction; VI. Disturbance.

Ouster, or dispossession, is a wrong or injury that carries with it the amotion of possession: for thereby the wrong-doer gets into the actual occupation of the land or hereditament, and obliges him that has a right to seek his legal remedy, in order to regain possession, the importance of which, as now the sole foundation of title, we had occasion to remark in the second book of these commentaries.

For in every complete title to lands, there are two things necessary; the possession, and the right or property therein: or as it is expressed in Fleta, juris et seisinæ conjunctio. Now if the possession be severed from the property, if A has the jus proprietatis, and B by some unlawful means has gained possession of the lands, this is an injury to A, for which the law gives a remedy, by putting him in possession. This it now effects in one way, applicable to every species of dispossession. But formerly the same result was attained, by different means applicable to the particular circumstances of the case. Thus, if B, the wrong-doer, had obtained the possession either by fraud or force, he had only a bare or naked possession, without any shadow of right; A, therefore, who had both the right of property and the right of possession, might, as he still may, put an end to his title at once, by the summary method of entry. But if B the wrongdoer had died seised of the lands, then B's heir was considered to have advanced one step further towards a good title: he had not only a bare possession, but also an apparent jus possessionis, or right of possession; the law presuming that the possession which is transmitted from the ancestor to the heir, is a rightful possession, until the contrary be shown; and therefore A was not allowed by mere entry to evict the heir of B. The descent cast, as it was called, was said to toll or defeat the right of entry, and A was driven to his action at law to remove the possession of the heir, though his entry alone would have dispossessed the ancestor. This was effected either by a writ of entry, or an assize, which were thence termed possessory actions; serving only to regain that possession, whereof the demandant or his ancestors had been unjustly deprived by the tenant or possessor of the land, or those under whom he claimed. They decided nothing with respect to the right of property; only restoring the demandant to that state or situation, in which he had been, or by law ought to have been, before the dispossession committed.

I shall not attempt here to describe the method of proceeding by writ of entry, referring the student rather to our ancient books, in which he will find frequent mention of the degrees within which such writs were brought.*

*It was upon one of them that common recoveries were grounded; these, we may remember, being fictitious actions brought against the tenant of the freehold, usually called the tenant to the præcipe, or writ of entry, in which by collusion the demandant recovered the plan. And I may add, that it was by another form of this writ that a widow recovered her dower. For if no dower were assigned to her, she got possession of one-third of the lands under a writ of dower unde nihil habet. But if she were deforced of part only of her dower, she could not then say that nihil habet; and therefore might have recourse to another action, by writ of right of dower; which was a more general remedy; and is, with regard to her claim, of the same nature as the grand writ of right about to be mentioned in the text.