Black v. Digges's Executors

Tins was an indebitatus assumpsit in the Provincial Court, referring to an account of particulars, some whereof can never alone support an indebitatus assumpsit The evidence to support the action below, being principally the oath of the plaintiff himself under our act of Assembly. The evidence was objected to and ruled to be improper to support the action. Two points are to be considered in this case. ist. Whether all the articles in the account are proper found;, «kmc fe this action ? 3d.

Whether, supposing some of the ¹⁵⁴ articles to be proper and others improper, and all be joined in one and the same account, as is the case here, the action is supportable ? Assumpsit and indebitatus assumpsit must be distinguished. Every indebitatus assumpsit is an assumpsit, but not vice versa. The actions of indebitatus assumpsit were introduced to prevent waging of law, which (though the old lawyers were fond of, and Coke says in Slade’s case, 4 Rep. 95. was taken from the 22d Exodus, v. 7. 10, 11.) was found to be introductory of perjury.

For the manner of waging law, see Jacob’s Law Dictionary, 2 Lili. 674, 675. Assumpsit lies for the non-performance of. any promise or contract (not being unlawful in itself) for valuable consideration, and the non-performance may be beneficial to the defendant, or prejudicial to the plaintiff. If a contract be made to build me a house, or do me any other service, or if a horse or goods are delivered to me at my request, and no price expressly agreed for, although an assumpsit will lie, yet an indebitatus assumpsit or debt will not lie. And even where the sum is certain, if the defendant is only collateral security, though assumpsit will lie, yet indebitatus assumpsit will not. 1 Vent. 268. 293.

In the same book, 311. it was adjudged that for goods sold at the defendant’s request to a stranger, indebitatus assumpsit lay, and four years after a contrary judgment was given. 2 Vent. 36. And in the case 311. the doctrine laid down is not contradicted, that collateral security is not liable to indebitatus assumpsit, but rather that the defendant was directly chargeable as debtor to the plaintiff, according to the distinction made by Holt, Chief Justice, in the case of Butcher and Andrews, Garth. 446. Upon any other supposition, the case 311. seems to be against the current of the authorities. The case of the Bank of England v. Glover explains the doctrine fully. 2 Raym. 753. 841, 842.

These cases shew the distinction between assumpsit and indebitatus assumpsit. Indebitatus assumpsit being substituted in place of actions of debt, which are superior to assumpsits, seems to be of a superior nature to an as sumpsit., ¹⁵⁵ '}■ Bac. Ábr. 162» The cases cited shew that there is a clisiinetion between the two actions indebitatus assumpsit and an assumpsit. The former will not lie on a wager nor against the acceptor of a bill of exchange. 6 Mod. 128, 129. 2 Vent. 175. 1 Salk. 23. pi. 3. and the case quoted in Hardr. 483. is to the same purpose; and it seems tobe the current and established doctrine that indebitatus assumpsit will not lie but where debt lies. Skin. 196.

Against this doctrine I remember but one case in Mod. Cases in Law and Equity, 373. which seems to be rather an obiter opinion, than an opinion on the point under the consideration of the Court, nor does it appear it was the Court’s opinion, and such opinions are not authority. Vaugh. 382. The cases cited