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Action.

36 Sect.

1.

Old Forms of Action, (1) Actions ex contractu,

Account.

53. An action of account (c) lay at common law against a guardian in socage, a bailiff, and a receiver {dy, to compel them to render an account of what they had received and expended in their office. It could also be maintained by one joint tenant {e) or one tenant in common or partner (/) against another, and it would lie against the administrator or executor of the person to be charged. The proceedings were lengthy, complicated, and expensive and therefore it was a form of action seldom resorted to, an action of debt (g), or assumpsit for money had and received, or (in complicated matters) a suit in equity being commonly preferred (/i).

Annuity.

54. The grantee in fee of an annuity and his heirs could bring of annuity (i) against the grantor and his heirs. It was superseded at a very early period by the more convenient form of action in debt, or in covenant.

an action

Assumpsit.

Common assumpsits.

55. " Assumpsit " (k) lay for the recovery of damages for the breach of a promise, express or implied, not made by deed. It was a special development of the action on the case, the non-fulfilment of a promise being in the nature of deceit and similar in results to the person injured (/). Originally a consideration passing at the time was necessary to support assumpsit (m), but gradually mutual promises came to be regarded as sufficient consideration to support each other, and in 1602 (n) it was held that the creation of a debt implied a promise to pay it, on which an action of assumpsit would lie. ''Common assumpsits" included indebitatus assumpsit, which ^yg^g promise founded on a precedent debt, e.g., goods sold quantum meruit, or quantum valebant, where, in the absence of an agreed price, the amount payable for work done, services rendered, and insimul computassent, or materials supplied, had to be assessed an action on an account stated and agreed between the parties. Another class included actions founded on a promise to pay a sum in consideration of a legal liability to pay it (0), as, for instance, in the case of a bill of exchange or promissory note, a foreign judgment,

Fitz. Nat. Brev. 116; Eeg. Brev. 135. Y. B. 2 Hen. 4, 12 b ; Co. Inst. 379. (e) 4 Anne, c. 16, s. 27. (/) Godfreij v. Saunders (1770), 3 WHs. 73. plaintiff could sue in debt or in account at his option ( Core's Case (1536), (g) 1 Dyer, 20), or in assumpsit. See Arnold v. Webb (1814), 5 Taunt. 432 n Tomkins v. Willshear (1814), 5 Taunt. 431. {h) "The action is so inconvenient that it has long been discontinued " {per Alderson, B., in Sturton v. Richardson (1844), 13 M. & W. 17). It had been revived for a time in consequence of delays in Chancery, as to which see Godfrey v. Saunders, supra. (^) Fitz. Nat. Brev. 152. (c)

(d)

A

Com. Dig. tit. "Action upon the Case upon Assumpsit." Bac. Abr. " Actions on the Case." For action on the case, see p. 39, post, (m) Fitz. Nat. Brev. 94. [n) Slade's Case (1602), 4 Co. Rep. 92 a. (o) The assurhpsit on the liability to pay differed from the indebitatus assumpsit, as in the latter case the promise was founded on a pre-existing debt, which was pleaded generally, while in the latter the circumstances under which the defendant became liable had to be pleaded specially. (h) {l)