Page:Harvard Law Review Volume 2.djvu/398

380 dence on the trial of such action, any parol demise or agreement, not being, by deed, whereon a certain rent was reserved, shall appear, the plaintiff shall not therefore be nonsuited, but may make use thereof as an evidence of the quantum of damages to be recovered."

The "difficulties" here referred to would seem to be two. If, before this statute, the plaintiff counted upon a quantum meruit, and the evidence disclosed a demise for a sum certain, he would be nonsuited for a variance. Secondly, if he declared for a sum certain, he must, as we have seen, prove an express promise at the time of the demise. The statute accomplished its purpose in both respects. But it is in the removal of the second of the difficulties mentioned that we find its chief significance. Thereby Indebitatus Assumpsit became concurrent with Debt upon all parol demises. In other words, the statute gave to the landlord, in 1738, what Slade's case gave to the seller of goods, the lender of money, or the employee, in 1602; namely, the right to sue in Assumpsit as well as in Debt, without proof of an independent express promise.

The other counts in Indebitatus Assumpsit being the creation of the courts, the judges found no great difficulty in gradually enlarging their scope, so as to include quasi-contracts, where the promise declared upon was a pure fiction. Thus, one who took another's money, by fraud or trespass, was liable upon a count for money had and received one who wrongfully compelled the plaintiff's servant to labor for him, was chargeable in Assumpsit for work and labor; and one who converted the plaintiff's goods, must pay their value in an action for goods sold and delivered.

But Indebitatus Assumpsit for rent being of statutory origin, the courts could not, without too palpable a usurpation, extend the count to cases not within the act of Parliament. The statute was plainly confined to cases where, by mutual agreement, the occupier of land was to pay either a defined or a reasonable compensation to the owner. Hence the impossibility of charging a trespasser in assumpsit for use and occupation. J. B. Ames