1. The legal acceptation of debt is, a sum of money due by certain and express agreement: as by a bond for a determinate sum; a bill or note, or a rent reserved on a lease; where the quantity is fixed, and does not depend upon any subsequent valuation to settle it. The non-payment of these is an injury, for which the proper remedy is by an action of debt, to recover the specifical sum due. So also, if I verbally agree to pay a man a certain price for a certain parcel of goods, and fail in the performance, an action of debt lies against me; for this is also a determinate contract: but if I agree for no settled price, I am liable not to an action of debt, but to a special action, according to the nature of my contract.

2. A covenant also, contained in a deed, to do a direct act, or to omit one, is an express contract, the violation of which is a civil injury. As if a man covenants to be at York by such a day, or not to exercise a trade in a particular place, and is not at York at the time appointed, or carries on his trade in the place forbidden: these are direct breaches of his covenant; and may be greatly to the disadvantage and loss of the covenantee. The remedy is by an action on the covenant: in which must be set forth the covenant, the breach, and the loss which has happened thereby; in order that damages may be given in proportion to the injury sustained by the plaintiff. The covenant must be one which the law allows; for covenants which are in themselves unreasonable, or in restraint of trade, cannot be enforced.

No person can at common law take advantage of any covenant or condition, except such as are parties or privies thereto, and, of course, no grantee or assignee of any reversion or rent. To remedy which, and more effectually to secure to the king's grantees the spoils of the monasteries, a statute of Henry VIII. gives the assignee of a reversion the same remedies against the tenant, as the assignee himself might have had; and makes him equally liable, on the other hand, for acts agreed to be performed by the assignor.

3. A promise is a verbal covenant, and wants nothing but the solemnity of writing and sealing to make it absolutely the same. If therefore it be to do any explicit act, it is an express contract, as much as any covenant; and the breach of it is an equal injury. The remedy is by an action on what is called the

assumpsit or undertaking of the defendant. As if a builder promises, undertakes, or assumes to Caius, that he will build and cover his house within a time limited, and fails to do it; Caius has an action against the builder for this breach of his express promise, undertaking, or assumpsit; and shall recover a pecuniary satisfaction for the injury sustained by such a delay. So also in the case before mentioned, of a debt by simple contract, if the debtor promises to pay it and does not, this breach of promise entitles the creditor to his action on the assumpsit, or implied promise to pay the debt sued for. Thus likewise a promissory note, or note of hand not under seal, to pay money at a day certain, is an express assumpsit; and the payee at common law, or by custom and act of parliament the indorsee, may recover the value of the note in damages, if it remains unpaid.

Some agreements, however, though never so expressly made, are deemed of so important a nature, that they ought not to rest on verbal promise only, which cannot be proved but by the memory, which sometimes will induce the perjury, of witnesses. To prevent which, the Statute of Frauds enacts that no verbal promise shall be sufficient to ground an action upon, but at least some note or memorandum of it shall be made in writing, and signed by the party to be charged therewith: 1. Where an executor or administrator promises to answer damages out of his own estate. 2. Where a man undertakes to answer for the debt, default, or miscarriage of another. 3. Where any agreement is made, upon consideration of marriage. 4. Where any contract or sale is made of lands, tenements, or hereditaments, or any interest therein. 5. And lastly, where there is any agreement that is not to be performed within a year from the making thereof. And Lord Tenterden's Act further enacts that no action shall be maintained, 6, whereby to charge any person upon any promise made after full age, to pay any debt contracted during infancy, or upon any ratification after full age of any promise or simple contract made during infancy, unless such promise or ratification shall be made by some writing signed by the party to be charged therewith. And 7, that no action shall be brought, whereby to charge any person by reason of any representation given relating to the character, conduct, credit, ability, trade, or dealings of any person, to the intent that such person may obtain credit, money, or goods, unless such repre

sentation be made in writing, signed by the party to be charged therewith.

From these express contracts the transition is easy to those that are only implied by law. Which are such as reason and justice dictate, and which therefore the law presumes that every man has contracted to perform; and upon this presumption makes him answerable to such persons as suffer by his nonperformance.

Of this nature are, first, such as are necessarily implied by the fundamental constitution of government, to which every man is a contracting party. And thus it is that every person is bound and has virtually agreed to pay such particular sums of money as are charged on him by the sentence, or assessed by the interpretation of the law. And this implied agreement it is that gives the plaintiff a right to institute a second action in order to recover such damages, or sums of money, as are adjudged by the court to be due from the defendant to the plaintiff in a former action. But such actions are discountenanced by the courts, as being vexatious and oppressive.

On the same principle it is, of an implied original contract to submit to the rules of the community whereof we are members, that a forfeiture imposed by the bye-laws and private ordinances of a corporation upon any that belong to the body, immediately creates a debt in the eye of the law: for which the remedy is by action of debt.

The same reason may with equal justice be applied to all penal statutes, that is, such acts of parliament whereby a forfeiture is inflicted for trangressing the provisions therein enacted. The party offending is here bound by the fundamental contract of society to obey the direction of the legislature and pay the forfeiture incurred to such persons as the law requires. Thus an action may be maintained against a sheriff for the penalty imposed on him for extortion, in levying greater fees in the execution of the process of the courts than the law allows; or against a member of parliament for voting without having taken the proper oaths. The usual application of these penalties or forfeitures is either to the party aggrieved, or else to any of the queen's subjects in general. But more usually the

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forfeitures created by statute are given at large to any common informer; or, in other words, to any such person or persons as will sue for the same; and hence such actions are called popular actions, because 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 general intendment of the law, 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 an action upon this implied assumpsit; wherein he suggests that I promised to pay him so much as he reasonably deserved, and then to aver that his trouble was worth such a particular sum, which the defendant has omitted to pay. This is called an assumpsit on a quantum meruit.

2. There is also an implied assumpsit on a quantam 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 for goods sold ; its converse, by the vendee against the vendor, is 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 to account for it to the true proprietor. This action 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, 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 actions are 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, and that the defendant engaged to pay the plaintiff the balance, but had since neglected to do it.

6. The last class of contracts, implied by reason and intendment 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 nonfeasance 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 the damages he has sustained. A solicitor 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 an implied contract with a common innkeeper, to secure his guest's goods in his inn, which, however the innkeeper may exclude by notice; with a common carrier, or bargemaster, to be answerable for the goods he carries, which, however, may be excluded by a special contract; with a common farrier, that he shoes a horse well, without laming him; with a common tailor, or other workman,