In covenant there is strictly no plea which can be termed the general issue, for non est factum, (not his deed) only puts in issue the fact of the execution of the deed, and therefore most matters of defense under this form of action must be specially pleaded, or notice given under the plea of non est factum.1 The jurisdiction of the justice, in this action, is perhaps, under our statute, somewhat limited. A justice, no doubt, has jurisdiction in this form of action, upon contracts under seal, for rent, and perhaps in one or two other instances under the 17th section of the justices' act. IV. OF THE ACTION OF ASSUMPSIT. This action is more extensively used than any other form of action, and under it will be found the largest and most general jurisdiction of the justice. It is so called from the word assumpsit, (he undertook or promised,) which, when the pleadings in courts of record were in Latin, was always inserted in the declaration as descriptive of the defendant's undertaking. It may be defined to be an action for the recovery of damages for the non-performance of a parol or simple contract; or, in other words, a contract not under seal nor of record, circumstances which distinguish this remedy from others, for the action of debt is in legal consideration for the recovery of a debt eo nomine and in numero, and is most frequently brought upon a deed; and the action of covenant, although in form the recovery of damages is sought by the plaintiff, can only be supported upon a contract under seal. Assumpsit however is not sustainable, unless there have been an express contract, or unless where the law will imply a contract.2 A contract not under seal, whether it be in writing or merely verbal, is a parol or simple contract. Parol or simple contracts are either express or implied. Express contracts are where the terms of the bargain, agreement, or promise, are openly uttered and expressed by the contracting parties, and may be either to do, or to forbear to do, a particular act, as to pay money on the sale or exchange of cattle or goods; to perform work; to let or take lands or houses; to warrant the soundness or quality of cattle or goods; to indemnify; to forbear to sue, &c. So promissory notes and all agreements reduced to writing are express contracts. Implied contracts, or promises, are (1) 1 Chit. pl. 181 to 138. (2) 1 Chit. pl. 112. (8) 1 Com. Con. 3. such as reason and justice dictate, and which, therefore, the law presumes every man undertakes to perform. As, if a person is employed by another to do any business for him, or perform any work, and nothing is agreed upon as the price of his labor. So when a man orders goods of a tradesman, without any agreement as to the price, the law implies that the buyer contracted to pay to the seller their real value.1 So likewise when money is lent and advanced, paid, laid out and expended, or had and received, and nothing is expressly stipulated by the parties as to the repayment thereof, the law raises an implied promise that it shall be repaid on request.2 But in such cases an actual request is not necessary before commencing the suit, but the bringing of the suit is a sufficient request. And in various other instances which might be mentioned, though no express agreement be made, a legal liability arises, and the law presumes that the party promised to pay the debt, or perform the duty or service. In short, assumpsit is a proper form of action to recover damages for the non-performance of all contracts or agreements, verbal or written, express or implied, not under seal.3 The declaration in this action should, except in cases of bills of exchange, promissory notes and checks, disclose the consideration upon which the contract was founded, the contract itself, whether express or implied, and the breach thereof; and the damages should be laid sufficient to cover the real amount; and in all actions upon contracts not under seal, except in cases above mentioned, it is incumbent on the plaintiff under the general issue to prove a consideration for the alleged promise of the defendant. This may ordinarily be done, however, by proof of all the circumstances of the transaction. Thus proof of the relation of landlord and tenant, is sufficient proof of consideration for a promise to manage a farm in a husband-like manner. And this manner is proved by evidence of the prevalent course of husbandry in that neighborhood. The same evidence will also necessarily disclose a privity existing between the defendant and plaintiff; for if the plaintiff is a stranger to the consideration, he cannot recover; and in all these cases, the plaintiff may recover as much as he proves to be due him, within the sum mentioned, or claimed, in his declaration. If the contract is in writing, and recites that a valuable consideration has been received, this is prima facie evidence of the fact, and the burden of disproving it is devolved on the defendant.5 (1) 1 Com. Con. 5; 2 Bl. Com. 448. (3) 1 Chit. pl. 112 to 122; Cowen Tr. 25 to 157, 1st ed. (5) 2 Greenl. Ev. sec. 105. (2) 1 Com. Con. 6. (4) 1 Chit. pl. 122. V. OF THE ACTION OF TRESPASS. 1. Of this Action generally. The term trespass, in its most extensive signification, includes every description of wrong; on which account an action on the case has been usually called "trespass on the case;" but technically it signifies an injury committed vi et armis, (by force and arms, or by unlawful means.) The action of trespass lies for injuries committed with force, and generally for such as are immediate. Force may be either actual or implied.1 Until recently, as will be seen,2 justices of the peace, under our statute, had jurisdiction in this action only in case of trespass on personal property. The jurisdiction being now extended to real property, this action will be considered under the two different heads of Injuries to Personal Property, and Injuries to Real Property. 2. Injuries to Personal Property. The action of trespass on personal property lies to recover damages for an injury done to personal property, occasioned by actual or implied force, as, for abusing or shooting the animal of another, or intermeddling with his property in exclusion of his right. The action of trespass, in its application to injuries to personal property, may be considered with reference, 1st, To the nature of the thing affected; 2d, the plaintiff's right thereto; and, 3d, the nature of the injury. And, 1st, As to the nature of the thing affected. Trespass lies for taking or injuring all inanimate personal property, and certain domiciled and tame animals, of which the law takes notice, and all domestic animals belonging to, or lawfully in possession of, another, whether he be the owner or not. 2d, With respect to the plaintiff's interest in the property affected. He must, at the time when the injury was committed, have had an actual or a constructive possession, and also a general or qualified property therein, which may be either 1st, in the case of the absolute or general owner, entitled to immediate possession; 2d, the qualified owner, coupled with an interest, and also entitled to immediate possession; 3d, a bailee, with a mere naked authority, unaccompanied with any interest, except as to remuneration for trouble, &c., but who is in actual possession; or, 4th, actual possession, though without the consent of the owner. In the first instance, the person who has the (1) 1 Chit. pl. 191. (2) Ante, pp. 27, 28. (3) 5 Cowen 323; 7 Id. 735. (4) 7 Johns 435. absolute or general property may support this action, although he has never had the actual possession, it being a rule of law, that the general property of personal chattels prima facie, as to all civil purposes draws to it the possession.1 In the second case, also, that of the bailee who has an authority, coupled with an interest, it would seem that trespass may be supported, though he never had actual possession, for an injury done during his interest, as in the case of a factor, or consignee of goods, &c., in which he has an interest in respect to his commission. In the third instance, that of a bailee, &c., with a mere naked authority, coupled only with an interest as to remuneration, he may also support this action for an injury done while he was in the actual possession of the thing as a carrier, factor, pawnee, a sheriff, or the like; but it is otherwise in case of a mere servant. In the fourth instance, that of the finder of any article, who may maintain trespass or trover against any person but the real owner, and even a person not having a strict legal right, but living in possession, may, it seems, support this action against any person but the legal owner. 3. Injuries to Real Property. Trespass is also the proper remedy to recover damages for an illegal entry upon, or an immediate injury to, real property corporeal, in the possession of the plaintiff. This remedy, in its application to injuries to real property, may be considered with reference 1st, to the nature of the property affected; 2d, to the plaintiff's right thereto; and, 3d, to the nature of the injury, and by whom committed. 1st, With respect to the nature of the real property affected. It must in general be something tangible and fixed, as a house, a room, outhouses, or other buildings, or land. Trespass may be supported for an injury to land, though not fenced from the property of others; the term close being technical, and signifying the interest in the soil, and not merely a close or inclosure in the common acceptation of that term.5 It lies, however temporary the plaintiff's interest, and though it be merely in the profits of the soil; as where a person contracted with the owner of a close for the purchase merely of a growing crop of grass, there, it was decided, that the purchaser had such an exclusive possession of the close, though for a limited purpose, that he might maintain (1) 8 Johns. 435; 2 Saund. 47, a. (2) 2 Bl. Com. 396. (3) See 1 Chit. pl. 194 to 197; see also, 4 Taunt. 549; 2 Saund. 47 d; 13 Johns. 141-276; 13 Wend. 113. trespass quare clausum fregit against any person entering the close and taking the grass even with the assent of the owner.1 2d, With respect to the plaintiff's right or interest in the property affected. The gist of this action being the injury to the possession, it follows, as a general rule, that a person must have the actual possession of real property to enable him to maintain trespass, and although the title may come in question, yet it is not essential to the action that it should.2 The owner of wild and uncultivated land is to be deemed in possession so as to enable him to maintain trespass. But where the possession alone is relied on to maintain this action, it must be an actual and not a constructive possession. Actual and exclusive possession, without a legal title, is held sufficient against a wrong doer, or a person who cannot show any right or authority from the real owner. 5 3 3d, With respect to the nature of the injury to real property. Trespass can only be supported when the injury was committed with force, actual or implied, and immediate, and it lies, however unintentional the trespass; and though the locus in quo (place where the trespass was committed) were uninclosed, or the door of the house were open, if the entry were not for a justifiable purpose, and it is held that even shooting at and killing game on another's land, though without an actual entry, is in law an entry. Every unauthorized entry on the land of another is trespass, for which an action will lie. The supreme court of this State have decided that in order to maintain an action of trespass for damage done by cattle or other animals, the owner of the close must show that it was protected by a good and sufficient fence; that the rule of the common law, which requires the owner of such animals to keep them on his own land, is not in force in Illinois. It would no doubt be otherwise, however, when it is shown that the defendant's beasts entered the plaintiff's land through a defect in the partition fence, which the defendant was bound to keep in repair. It is held that when a trespass is committed by the coöperation of several persons, they are all trespassers, and may be sued jointly and separately, and any one of them is liable to pay all the damages occasioned by the acts of the whole, but there can be but one satisfaction of damages. Thus, where joint trespassers are sued separately, and separate judgments obtained, the plaintiff can have but one satisfaction (1) 1 Chit. pl. 200. (2) 1 Chit. pl. 202; 15 III. 555. 13 Johns. 141; 7 Cowen 752; 2 Gil, 652. (8) 5 Gil. 130; 18 11. 609. (3) 8 Johns. 270. (4) 1 Scam. 181. |