I. CH. 5. Art. 1. ART. 1. 1 N. H. Rep. al. v. Yeaton. CHAPTER V. WHEN THE PLT. HAS AN ELECTION IN ACTIONS, AND MAY $1 Con. 1. If the deft. tortiously converts to his use the plt's. goods, as when master of the plt's. ship, he earns freight, and then wrongfully sells her, and becomes liable in trover or trespass, the plt. may elect to waive the tort, and bring assumpsit Chauncey & for the freight earned, the amount of the sales and interest thereon. 2. As in this case the plt. waives the tortious conduct of the deft., and treats him as his agent and bailee, and so adopts his acts, the deft. must be allowed his reasonable demands as agent or bailee. 3. If the ship earn freight in an illegal voyage, as under an enemy's license, the plt., the owner, cannot recover her earnings; for to do this, he must consent to P. 184-187. the illegal voyage, and participate in it. 1 M'Cord, 449. 2 Serg. and Rawle, 358. Gilmer, 33. 1 M'Cord, 207. 17 Mass. R. 400-405, Arnold and al. v. Lyman. 17 Mass. R. 575-581, Hall v. Marston. $6 Con. If an account be liquidated, and a note given for the balance even of a third person, the creditor may sue on the note, or on the open account, at his election, unless the note be expressly received in payment of the balance. If the evidence prove a trespass and conversion, the plt., if there be a count in trover, may waive the trespass and recover in trover. An action by a father for debauching his daughter, may be trespass or case; so case or trespass for criminal conversation. Case the most proper action in the daughter's case above. 3 Serg. and R. 217, and see ch. 64, vol. ii. $8 Con. A owes debts to B and others, and his estate is liable to them, &c. A conveys his property to C; he, in writing, engages to pay A's debts due to them, naming B, &c., and the sum. B has assumpsit for the amount A owes him against C; and 3 Cran. 495. See sect. 14 and Metcalf's Yelv. 25. many cases cited. $9 Con. Same principle, A owing B $1300 and C $400, A being abroad, remitted to B a bill of exchange for $1000, directing B, on receiving the contents, to pay C $200. B received the contents, but neglected to pay C, and gave him no notice. C recovered in assumpsit his part of the money. 17. Assumpsit lies to recover an annuity given in a will, as 1 N. H. Rep. 217-232, Margaret Erickson v. Joseph Willard, was assumpsit and several counts, stated in substance that Sept. 1, 1806, one Elizabeth Twyman died testate, that the deft. was her sole devisee under a condition to pay the plts., from the income of the estate devised, the sum of fifty dollars annually during the plt's. life; that the deft. was sole executor of said Elizabeth, accepted the trusts, took possession of her estates, the income of which was more than sufficient to pay the above Art. 1. Con. annuity and that he thereby become liable, and in consideration I. CH. 5. thereof promised, &c. but had neglected the payment of it. Plea never promised, &c. This action was on a clause in said will by which the testatrix devised her estate to said J. W. and made him executor, and added her desire that the said Joseph Willard should, at his discretion, appropriate a part of the income of my estate aforesaid, not exceeding $50 dollars a year, to the support of the widow M. E. &c.' Held, said Willard was trustree to this amount, which trust a court of law could enforce. It being expressed as above, at his discretion, differed the case from the common case of a legacy or annuity absolutely given: no doubt it was for this reason the cause was viewed of so much importance, and scores of authorities were cited in it by the court and counsel. Willard was the minister of the testatrix and wrote her will, and the plt. was her neice and heir. The sum to be recovered (if anything) was agreed. The material question was, if the annuity was a trust or to be merely at Willard's discretion. Held, a trust, and the words at his discretion' applied merely to the manner, as did the same words as to the burial of the testatrix, to be buried at his discretion,' could apply only to the manner; for she could not be supposed to leave it at his discretion' whether to bury her or not. The sum too was for her life and support. Not much objection to the action, assumpsit. The court noticed the opinion of Buller, J. who held a breach of trust was the ground of 5 D. & E. 608, an assumpsit. In support of the trust, the opinion of Lord El- Smith v. Jamdon, 8 Ves. Jr. 380, Paul v. Compton, was relied on, where he said whether the terms are those of recommendation, or precatory, or expressing hope, or that the testator has no doubt; if the objects, with regard to whom such terms are used are certain, and the subjects of property to be given are also certain, the words are considered imperative and create a trust.' As to the action, the plt., it will be observed, grounded it on the deft's. liability to pay, and so his promise to pay; rather a common case, where there is no court of chancery, for to allow an action, especially assumpsit, to enforce a trust in a court of See ch. 9. a. law; and the expression of the Supreme Judicial Court of 8. 6.-Ch. 9. Massachusetts, 1 Mass. R. 204, that it could not enforce a trust, is too general. eson. a. 3. 1.-Ch. 114. a. 13. 3. Vol. 4. CHAPTER VI. THE PLAINTIFF MUST WAIT TILL THE CAUSE OF ACTION IS 4. Con. In an action against the representatives of one of ART. 2. two joint obligors in a bond, dated before the said statute of Con. 1 I. CH. 6. 1786, it is necessary to state in the declaration, that that obligor survived his companion. 2 Munf. 49. § 8. A devise of real and personal estate to the testator's widow for life, then to trustees to be turned into money and 1 Jacob & W. divided among several persons named, and the survivors or survivor of them, those only take who survive the widow. And 2 Jacob & W. 278-286; 3 Ves. 233; 1 Swan. 161. 146. 5 Pick. 15-17, § 9. Assumpsit for money had and received by the deft. to the plt's. use, as administrator of B. A gave his note to B and C. B died, and after his death C received payment. B's administrator, the plt., recovered half of C. 2. Held, C could not set off claims he had against B's estate; his estate was insolvent. 3. As B had no cause of action against C, held further, B's administrator might have sued in his own right, though accountable to B's creditors, as administrator, for the money when recovered. § 10. Indebitatus assumpsit for goods sold and delivered. Loring & al. v. Delivery was admitted. Defence, sold on credit that had not Gurney. expired when the action was commenced. Two principles were allowed: 1. Where a promissory note payable on demand, with interest, after a limited time, will support an action brought before the time is expired. Hence, when goods are sold, &c. to be paid in such a note, if the vendee neglect to give it, the vendor may sue forthwith for the price. 2. The usage of an individual known to the person with whom he deals, may be proved, as tending to show what is their contract. ART. 1. Con. 2 Pick. R. 527, CHAPTER VII. ACTIO PERSONALIS MORITUR CUM PERSONA: ACTIONS ON § 3. Con. An action on a promise of marriage broken by the intestate does not survive against his administrator. See ch. 29. a. 3. 2. The action was assumpsit; cited for the promisee, Yelv. 21; Plowd. 181; 9 Co. 86. b.; 2 Brownl. 137; W. Jones, 173; Cro. El. 552; Cowp. 371; 1 Saund. 216; Palm. 329; Sty. 158; Cro. J, 405-417; Rol. R. 266. Cited for the promisor, 2 M. & S. 415; Cowp. 372. b.; 1 Salk. 252; Carth. 153; 1 Saund. 216; 1 Vin. 176; 7 Mass. R. 52; 2 M. & S. 408; 1 M. & S. 364; 2 M. & S. 414; 14 East, 198; Pre. Ch. 105; 1 Eq. Ca. Abr. 149; 6 D. & E. 369; 5 B. & P. 365. Debt for a penalty for cutting and carrying away trees of the Little v. Co- plt. contrary to the stat. 1817, c. 173, abates by the plt's. nant & al. death. ACTIONS. I. CH. 7. 6. Con. An action of trespass quare clausam fregit is not converted into an action de bonis asportatis by an allegation in a declaration, that trees cut were carried away. Hence this rule actio personalis, &c. applies to such an action; therefore, if the deft. die pending the suit, it abates, even if his adminis- 3 Rand. 14-24, trator come in by consent. The Virginia statute, 1 Rev. Code, Harris v. does not give to the executor an action like this, but only an action for goods taken and carried away, in the testator's lifetime. Crenshaw. 23. As to actions generally, one principle is well settled, 17 Mass. R. that is, that no action will lie on a contract made in violation of 281. a statute, or of a principle of the common law. 623-629, Shed § 24. Assumpsit on a joint and several note; one defaulted, 17 Mass. R. the other may plead alone any matter proper to bar the action, Here one deft. plead an Pierce. but nothing that contradicts the note. agreement purporting that on paying a less sum than was due from the other deft. on the note he was to be discharged; and he did pay the less sum, &c. Plea bad, as it directly contradicts the note. Plt. supported his action. The agreement at Ch. 101. a. 2. most not to sue one promisor is only a ground of action. § 25. The father has this action in Virginia for the loss of liott, 6 Munf. his daughter's service and expenses incurred by him in consequence of her being debauched and having a child by the deft. 2 D. & E. 187. when no forcible injury to himself or to his property is alleged -6 East, 387. in the declaration. 22. 587.-See 3 -See ch. 59. § 26. Assumpsit for money had and received lies where A purchased a land warrant, ignorant it was void, and sold it to Then it was adjudged void. 1 Tennessee Rep. 438. B for a valuable consideration. B in this action recovered back the price. 27. An action on the case for diverting a water course 5 Pick. 257– dies with the plt. This action respected real estate, and the 258, Holmes v. stat. 4 E. 3. ch. 7. is confined to personal estate. CHAPTER VIII. ACCOUNT. Moore & al. 12. If the plt. go for a mere partnership account to be ART. 1. taken and settled, it is a proper case for a court of equity. Con. 1 Const. R. 172; 1 Nott and Mc Cord, 587. 6. Where in an action of debt in Maryland, auditors are ART. 4. appointed on the statute 1785, ch. 80. s. 12. to audit accounts, Con. there must be the same proceedings as in an action of accounts. This was an action of debt on a bond of a deputy sheriff to the sheriff, conditioned to perform certain duties specified as deputy sheriff and collector in a certain hundred specified in the sheriff's county. The court appointed auditors to audit accounts be VOL. IX. 4 i I. CH. 8. tween the parties. Special pleadings and bills of exception. 4 Har. & Mc H. 65, Mantz v. Collins. Art. 4. § 7. It seems the plt. may recover more damages than he declares for. P. 568. If he state in his declaration the value of Pennsylvania the goods, also the damages, he has judgment for both-distinGratz v. Phil guishing each. If the deft. resist the plt's. claim by pleading, lips, 5 Binn. or a receiver receives an increase to merchandize, there is judgment for damages. But if, on the issue, never receiver, or bailiff, the jury assess damages, no judgment can be given for them. 564, ART. 13. CHAPTER IX, ASSUMPSIT. 1. Con. A and B settle accounts, and by mistake B gives a note, $20 too large, for the balance: A may endorse this sum 1 Greenl. 152- on the note and give B notice, and all is settled; but if A do not do so, B may have assumpsit for the $20, or referees may allow it. 155. Utica Bank v. 18 John. R. 485. Assumpsit for money had and received paid to the deft. by Van Gierson, mistake, notice of it and demand of repayment before suing, are not necessary. The deft. is not bailee or trustee. But if notice and demand were necessary, putting a letter containing the same into the post office, directed to the deft. would be sufficient. Lies against two defts. only on their joint contract, or on their joint receipt of the money. Manahan v. ART. 5. Hudson v. Wheaton v. ART. 8. 1. Con. If personal property be purchased the title to which fails, the consideration may be recovered back, unless benefit have been received from the purchase. 2 N. H. R. 61. But to entitle the purchaser of land to recover back part of the consideration paid, he must prove he has tendered the purchase money and demanded a deed, so as to put the vendor in default. Quare, if the purchaser must not form and tender a deed to be executed? Usurious interest recovered back by the borrower; this is on paying the principal and legal interest. § 1. Con. Judgment is recovered by A against B, and execution is taken out and the amount paid, and afterwards the Clark & al. v. judgment is reversed; B may recover back the money in an action for money had and received, though he may have his old remedy of scire facias; and if the judgment be paid in a note, and that is paid, it is the same thing; so if only endorsed satisfied. This case laboured, and cases were cited for and against. It is not easy to see why doubted. 8 John. 202; 11 Id. 464, &c.; Green v. Stone, 1 Har. & John. 405. Pinney, 6 Cowen, 299301. |