presentation in question; and if it appear that the patron is a trustee, he shall discover for whom, and the court may order the cestui que trust to appear and make the declaration, &c.-1 Barnes, 2. Such a commission directed to the prothonotaries. (a)

By 3 Hen. VII. c. 10. If the defendant bring a writ of error, and judgment be affirmed, the plaintiff shall recover his costs and damages for his wrongful delay.

By virtue of this statute, the court of King's Bench have, upon a writ of error, awarded damages according to the value of the church found by the verdict: (Anon. M. 1627. Cro. Car. 145. Pembroke Earl v. Bostock, M. 1628. Ib. 175.) but as the real damages which the plaintiff sustains, is only the being kept out of the half year's value, the legal interest on that seems to be all he is entitled to.-London Bp. v. Mercers Comp. H. 5 Geo. II. 2 Stra. 931.

and in like manner with other benefices mutatis mutandis.

This writ also lies for a bishop disturbed, to collate where he ought to do so, and the writ shall be quod permittat ipsum presentare, &c. And so for the king disturbed, in his collation by letters patent, N. Nat. Brev. 73; for the king cannot remove an incumbent presented, instituted, and inducted, though on usurpation, but by quare impedit judicially. Rex v. Norwich Bp. Cro. Jac. 385.

It lies also for the grautee of an advowson against the (patron) grantor. 39 Hen. VI. So for executors on their disturbance, or for the disturbance of their testator. Sale v. Lichfield, Owen, 99. Smallwood v. Coventry Bp. Lutw. 1. So for husband and wife jointly, or the husband alone in right of his wife's presentation; and if he die, the wife may sue alone. Lady Northumberland's Ca. 5 Co. 97. And so for a claimant under a recovery by 7 Hen. VIII. c. 4.

could have had it, and the pleadings may be had as in darrein presentment.

Nor does this writ lie for issue in tail, if tenant in tail suffer usurpation and die, and six months pass, but at the next avoidance he may have it within six months.

Neither does it lie for one who brought an ejectment, (without making the incumbent a party) recovered the advowson, and had a writ to the bishop without a sci. fa. to the incumbent. Hall v. Broad, Sid. 93.

Neither does it lie against the ordinary and incumbent, without naming the patron. Sed secus if the king be patron, for quare impedit lies not against him, but where he is plaintiff he may sue the patron without naming the incumbent. Where the patron's inheritance is to be divested the incumbent must be named, but not where the next presentation only is to be recovered. The incumbent may always plead to defend his incumbency by statute Edw. III. st. 3. c. 7. Hall's Ca. 7 Co. 107. Saville v. Thornton, Cro. Jac. 650. Palm. 306.

For the practical directions upon this writ, as well as upon the mode of prosecuting the Writ of Right, the editor begs leave to refer his readers to the accurate Dictonary of Practice, lately published by Mr. Thomas Lee.

PART

PART II.

CONTAINING ONE BOOK OF

ACTIONS FOUNDED UPON CONTRACTS.

INTRODUCTION.

MUTUAL commerce and intercourse is of the very essence of society; but if there were no method of compelling the faithless to keep their engagements, self-interest is so prevalent, that very few would be adhered to, and consequently very few made. Thus the chief advantage of society would entirely fail, unless its laws were so framed as to bind its members to a strict performance of their contracts, by compelling them to make an adequate satisfaction for the breach of them.

Hence springs a new set of actions very different from those treated of in the first part of this work, and they are actions founded upon contract: Such are actions of

1. Account.

II. Assumpsit.

III. Covenant.

IV. Debt.

CHAPTER I.

OF ACTIONS OF ACCOUNT.

THE Action of Account is of late years but rarely used, therefore I shall say very little upon it. At common law it lay only against a guardian in socage, bailiff, or receiver, and in favour of trade between merchants. The 13 Ed. III. c. 23, gave it to the executors of a merchant ; the 25 Ed. III. c. 5. to the executors of executors, and 31 Ed. III. c. 11. to administrators. And now by the 3 & 4 Ann. c. 16, it may be brought against the executors and administrators of every guardian, bailiff, and receiver, and by one joint-tenant, tenant in common, his executors and administrators against the other, as bailiff, for receiving more than his share, and against their executors and administrators.

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If the plaintiff in his declaration say not by whose hands, if the defendant demur specially he will have judgment; for if it were by the hands of the plaintiff, the defendant may wage his law, aliter if it were by another's hands. (Jaggard v. Flitt, H. 26 & 27 Car. II. B. R.) It seems this must be understood of cases where the defendant is charged as receiver only; for if he be charged as bailiff, it is not necessary to shew by whose hands. Walker v. Holiday, M. 1731. Comy. 272.

In account against one as receiver by the hands of A. a receipt by his hands ought to be proved. But if he prove that A. directed the defendant to borrow of another to pay the plaintiff, and that the defendant borrowed the money accordingly, that is sufficient.—Harrington v. Deane, H. 1613. Hob. 36.

If the defendant plead ne unques receiver, he cannot give a release in evidence, neither can he give in evidence bailment to deliver to B. and that he has delivered accordingly: for though this special matter prove he is not accountable, yet as upon the delivery he was accountable conditionally, (viz. if he did not deliver over) it does not prove the plea; but if the defendant plead he accounted before R. and W. evidence that he accounted before R. only is sufficient, because the account is the substance.-Speake v. Hungerford, 1561. 2 Rol. Abr. 683. F. 1. Willoughby v. Small, H. 1616. 1 Brownl. 24.

In the action of account there are two judgments; the first is quod [128] computet, after which the court assigns auditors, before* whom nothing shall be allowed as a good discharge, which might have been pleaded to the action.-Taylor v. Page, T. 1628. Cro. Car. 116.

If the defendant plead any matter in discharge before the auditors, which is denied by the plaintiff, so that the parties are at issue, the auditors must certify the record to the court, who will thereupon award a ven. fa. to try it; and if on such trial the plaintiff make default, he shall be nonsuited, but after that he may bring a sci. fa. upon the first judgment.

Note; the defendant cannot in this action pay money into court, as he may in assumpsit.-Per Willes, C. J. T. 27 Geo. II. (a)

(a) The last action of account which was brought, seems to be that of Godfrey v. Saunders, 3 Wils. 73, which was depending fourteen years in C. B. and Wilmot, C. J. concluded the judgment of the court in that

cause, with expressions of his own approbation to see this ancient mode of proceeding revived. N. B. The pleadings in this case are set forth at length after the manner of Lord Coke's reports.

CHAPTER

CHAPTER II.

OF ASSUMPSIT.

Of all actions founded upon contract, none is in more general use than the Action of Assumpsit, which is founded upon a contract either expressed or implied by law, and gives the party damages in proportion to the loss he has sustained by the violation of the contract.

There are two sorts of assumpsit.

First, a general indebitatus assumpsit.

Secondly, a special assumpsit.-Woodford v. Deacon, E. 1608. Cro. Jac. 206. 1 Rol. Abr. 8. Green v. Harrington, Hut. 35.

1st. General indebitatus assumpsit will not lie where the debt is due by specialty, for in such case the specialty ought to be declared upon; (a) therefore it is always necessary in this action to shew for what cause the debt grew due; and in case it be not shewed, it will be sufficient reason to arrest judgment, or to reverse it upon a writ of error. (b)

The general causes for which this action may be brought, are either, first, for money lent. Secondly, for money laid out and expended. Thirdly, for money had and received to the plaintiff's use. Fourthly, for a sum certain (viz. £10) for goods sold and delivered. Fifthly, for goods sold quantum valebant. Sixthly, for a sum certain for work and labour. Seventhly, a quantum meruit for work and labour. Eighthly, on an account stated.

(a) Where a person does not rely on the promise which will raise an assumpsit, but takes a bond as a security, he cannot afterwards resort to this action. Toussaint v. Martinnant, 2 T. R. 100.

(b) As the plaintiff in this action. is bound to declare specially on special agreement, he ought to prove the contract expressly as laid. Anon. 1 Ld. Raym. 735. Hockin v. Cook, 4 T. Rep. 314. Payne v. Hayes, post, 145. For the agreement being the gist of the action, must be truly stated. Churchill v. Wilkins, 1 T. Rep. 447. Weaver v. Burrows, post, 139 King v. Robinson, Cro. Eliz. 79. Bradburn v. Bradburn, ibid. 149. But where the agreement is in the alternative,

plaintiff has his option to sue on either part, and in that case he need not state the whole agreement, for the part he has elected becomes absolute, and that part he must prove. Sed secus, where the alternative is in the defendant. Layton v. Pearce, Dougl. 15, and Churchill v. Wilkins, sup. therein cited. Such is the case of a general assumpsit, but if he declare in assumpsit on a special agreement, and has other counts in his declaration, he may go into evi dence on the general counts, though he fail to prove the special agreement. Vide Harris v. Oke, post, 139, and the case of Payne v. Bacombe, there referred to in notis.

And