Art. 5. Con. well as what we call the law of nature; there is too an intuitive II. CH. 2. perception in every man, that men in society are bound to perform their contracts independent of such enactments. If there be no binding force in a contract made in society, but the mere statute, mere legal enactment, what has conscience and equity to do with it. Such a contract can be proper only in courts of law. In numerous instances in society, men hold the plt. in equity and good conscience, has a just claim to have something of the deft,, and that the law raises in the deft. a promise (contract) to render that something; what law? statute law or enactment? by no means, but the law, or reason and conscience, as operating in the human mind, and intuitively, so in society as in a state of nature; and it is this moral, this intuitive principle and perception, that is the essence of the obligation of contracts. CHAPTER II. REMEDIES BY THE ACTS OF THE PARTIES. 2 Greenl. 408 $7 Con. Damage feasant. Trespass for taking and carrying ART. 5. away the plt's. sheep. Held by the statute of Maine of 1821, Heath v. Richch. 126, sec. 9, the right to sell beasts taken damage feasant, is er and another, given only in cases where the injury was done to lands inclosed410. with a legal and sufficient fence.' As to many remedies by the acts of the parties, see Accord and Satisfaction, Arbitration, Award, Distraining, Replevin, &c. §6. A note accepted, &c. B, a debtor, gives his note, en- ART. 6. dorsed by A, as further security for a part of a debt; this the creditor accepts in full satisfaction of all demands. This note, Boyd v. Hitch R. 76. so accepted, is a discharge of the whole debt, and may be cock, 20 Johns. pleaded in bar as an accord and satisfaction. CHAPTER III. OF ACTIONS GENERALLY. 5. Trover for a horse; one deft. was defaulted; Thwing, ART. 1. a minor, defended by guardian. Held a minor, who hires a Con. horse to go to a place agreed, but goes to another place in a different direction, is liable in trover for an unlawful conversion Thwing & al. of the horse. § 6. No action for tort lies for damages occasioned under a statute, and that providing a special remedy. As where the legislature of New Hampshire, by an act of incorporation, authorized a dam to be built across Connecticut river, at White VOL. IX. 3 3 Pick. 492495, Homer v. I. CH. 3. 3 Johns. Ch. R. Codrington. River Falls, and prescribed the method in which damages, thereby occasioned, should be ascertained; and the deft., in erecting the dam, caused damage to the town of Lebanon to the amount, as stated, of $650, by flowing a highway, &c. Held, that no action lay, and judgment for the deft. If in such case the legislature provides no specific remedy to enforce payment of the damages; when ascertained, the debt lies. The plt. brought trespass on the case. The damage to the town was the expense of repairing the road overflowed, assessed in the mode prescribed at $240. As to debt, see ch. 143, a. 5 s. 18. Different decision in New York. 7. If A makes a promise to B, for the benefit of C, C may Cumberland v. maintain an action at law on the promise. An action of account 229, 254-7, lies at law by one partner against another; and there is no good reason why that action is not resorted to instead of a bill in equity. do. 57. Duncan v. $8. An action of covenant lies at law by one partner against another, where, by the contract, there is a covenant to account. So assumpsit lies on a promise in writing by one partner, to take part of the goods bought, in which they were to be equally concerned as to profit and loss. ld. $9. Whenever an injury is done to goods in the actual possession of a servant, carrier, or bailee, if the owner have the immediate right of possession, he may, for such injury, sue in 1 Hawks. 301. his own name. White v. 10. A sells a tract of land to B as containing two hundred acres. It is not described by metes and bounds, nor by any visible or known marks, and the number of acres can be found but by actual survey; if there be any considerable deficiency, 2 M'Cord, 440. B has his action therefor. Talbot v. $11. A buys an article of B, and pays him for it; the article fails; A, to recover back the price, must first return or tender the article. 2. This is not necessary to enable A to recover on the warranty. 3. This rule relates as well to implied as to 2 M'Cord, 432. express warranties. 4. In an action on the warranty of title to real or personal estate, the measure of damages is the price. paid for the property, with interest from the time of the pur2 M'Cord, 413. chase. This, as to real estate, is not the rule generally, see ch. 115; though it seems to prevail in the slave-holding States, where a large part of the property, personal in fact, is made real by statute law, that is, their numerous slaves. § 12. A sells a horse to B for $50, and takes C's note for that sum. This is payment, and if it turns out A had no title, B has assumpsit for money had and received to recover of A $50 and interest. 2. This is the proper form of action, where there is a warranty of title express or implied in the sale of a 11 Johns. 409. chattel; and in which a warranty of title is implied. Such note is payment. Assumpsit, the proper form of action, 6 Johns. 168; warranty of title implied, 1 Johns. 274; 3 Cowen, 272, 280, Read v. Barber. any I. CH. 3. 13. When a merchant abroad accepts my order for goods, without directions from me how to pack and secure them Dickey v. in the vessel, he is liable to my action if he, in shipping them, Grant and neglect to pack and secure them in the usual and customary & Cowen's R. manner, and by such neglect the goods are injured. others, 310-112. ux. adm'r. 14. Assumpsit for money on agreement to pay for land, &c. Fuller v. Held, 1. If A contract to pay for land and receive a convey- Hubbard and ance of it of B, and pays part, before any conveyance is made 6 Cowen, 13by B, A cannot rescind the contract, and sue for the purchase 22. money and interest; but he must sue on the contract, as one still in force. 2. Where B agrees to convey land to A on his paying the price, A must tender or pay it; also demand a conveyance, and, after waiting a reasonable time for it to be made out, must present himself to receive it. The purchaser, to recover on the contract, must put the vendor or his heirs in default; to do this, by the English law, the vendor must prepare and tender a deed ready to be executed; on this last point, see Sugden's L. V. 181, 182, and cases cited, especially Baxter v. Lewes and Webb v. Battel. v. Sparrow, 12. As to partners in trade, &c. Held, if the creditor ART. 3. agree not to take the separate estate of one partner, he cannot Con. sue the partnership debt. On judgment against the adminis- 16 Mass. R. trator of the surviving joint partner, it appeared Webster and 24, 28, Sewall Thatcher were such partners, indebted to the plts. They re-adm'r. ceived of Thatcher $1410, his separate estate, and promised him, in writing, not to sue any process against him and Webster, by which the separate estate of Thatcher might be taken for the debt yet due from both, but only their joint property, and Webster's separate estate. Thatcher died insolvent. Held, also, this action could not be maintained. The agreement was specially pleaded, and averment Webster was alive and insolvent. General demurrer to this plea and joinder. This was not an action at common law, not barred by a promise merely in writing, but an action on Massachusetts statute of 1784, as to insolvent estates, and an appeal from the commissioners who rejected the claim. 161, 166, Newcom v. 13. Held, A, for a valuable consideration, promised to 16 Mass. R. convey certain lands to B as soon as B should pay a certain sum, and A conveyed them to C; B may sue A presently, and Brackett. need not pay, or tender the sum, on the general principle that A disabled himself to perform his part. §14. Held, where A has B's note, and receives part payment, and omits to endorse it, and gets judgment for the whole note, B may sue A, and recover the sum so paid, though the judgment be not satisfied. 16 Mass. R. 306 308, Rowe v. Smith. I. CH. 4. § 15. An owner of a vessel may be liable to an enemy's action, as where a United States' vessel went into his port, pretending to be neutral, and as such obtained credit of an enemy merchant there, for repairs and expenses of defending her in the admi16 Mass. R. ralty, where condemned as enemy's property. After peace the foreign merchant recovered against the owners in assumpsit on an implied promise. This was a new case. 332-336, Musson & al. v. Fales and others. 17 Mass. R. 247, 249, Kingman v. Pierce. ART. 1. 17 Mass. R. 4 Munf. 73, Monroe v. Webb's ex. § 16. Held, if the maker of a note pay it unfairly, and get possession of it, the owner has trover for it; as where the owner, the payee, going abroad, left the note with his son, and directed him not to receive payment in his absence, the maker insisted on payment though informed of the directions. The son received the money and delivered the note, not then due. Decision as above. A new trial was granted. The maker of the note had no right to the note till it became due. It is clear the payment of the money to the son had been valid, if he had been authorized to receive it, or if the plt. had received it after his return, from his son. CHAPTER IV. WHEN THE PLT. HAS A RIGHT OF ACTION AND OF WHAT KIND. $24. If A sue B, and credit him goods, but short of their full price, and obtain judgment, it is no bar to B's action for the goods. $25. If A hold the written promise of B, and receive thereon partial payment, and omits to endorse them, and obtains judgment for the whole amount promised, on trial, B's remedy is a review of the action; but if made in confidence A would endorse them, then B may have assumpsit for money had and received for the amount of the said partial payments; as ch. 3, s. 14. See also 7 Mass. R. 14, ch. 9, a. 8, s. 5, vol. i. 26. An action lies for the plt. against the clerk of a court, for endorsing credit on an execution to the plt's. injury; but the declaration must charge that he made them as clerk without the plt's. privity or consent to his loss; also it must charge that such endorsements were made without the plt's. order or consent. 1 M'Cord, 121. § 27. When a new remedy is given by statute, the plt. must bring himself within it; and p. 181, he must strictly pursue it, and it must appear on the face of the proceedings that the plt's. case is such as to empower him to recover under the statute. 2 Const. R. 428. 2 Nott and § 28. When the character of plt. and deft. meet in the same person, a suit at law cannot be maintained, though other interests may be implicated. The proper remedy is in equity. When a deft. is unable to pay the gaol fees for his detention M'Cord, 377, in prison, the sheriff has an action against the plt. for the and M'Cord, $29. Assumpsit never lies for stolen goods; and no action I. CH. 4. before conviction; case in tort, may, in some instances, lie after Art. 1. conviction against the thief. See Simpson v. Gisling, Bul. N. P. 131; 3 Greenl. 458, 460. Con. $30. No action lies for one whose property has been attached, 17 Mass. R. and who has suffered much damage in consequence of a civil 195, 197. action which was abated, unless the prosecution thereof be malicious. $31. False certificate, how a ground of action. As where a 2 Greenl. 8, 12. town clerk carelessly gave a false certificate to deft. attested a copy of record, in order to support his plea of infancy, by reason of which the plt. was obliged to continue his action to obtain a correct certificate to prove the deft. was of age when he bought the goods of the plt. who had attached sufficient, &c. In the mean time the deft. died insolvent, by which the plt. said he lost his attachment, &c. Held the town clerk was liable to pay the plt. for the damages occasioned by the delay and continuance of the action; 2. The only proof of the insolvency was a commission of insolvency issued, so as to dissolve the attachment; but as no commission had issued, the attachment was not dissolved; so no damages on that account. 32. The plt. has no action for a breach of covenant where 2 N. H. Rep. he has taken a note in satisfaction of the breach; and this bar 171. is a good consideration for the note; Drake v. Mitchell, ch. 20, a. 20, s. 7; otherwise if not so accepted, Foster v. Allanson, ch. 52, a. 4, s. 5, Moravia v. Levy; a party has no action, Id. 534. Cres. 145. $33. A tenant tenders the amount of his rent, due to the 1 Barn. and lessor. After this he distrains the tenant's goods for the rent, he has an action on the case for an excessive distress. See rent, ch. 151, a. 4. 543. $34. The plt. had adopted, as a manufacturer, a particular 3 Barn. and mark for his goods, to denote they were manufactured by him. Cres. 541— The deft. adopted the same mark to denote that his goods were manufactured by the plt., and the deft. sold his goods, so marked, as and for goods manufactured by the plt. Held the plt. had a right of action against him. §35. If a factor or agent having sold his principal's goods, 5 Munf. 34. be ordered by him, while they are in transitu, not to deliver them to the buyer, his solvency being doubted; yet he delivers them, and demands no security, the principal has his action against the factor, if the buyer prove insolvent. 36. No action at law will lie on the decretal order of a court 8 Wheat. 697. of equity. The Circuit Court decided differently. |