Part VII.
— Forms
of Action.
37
a fine or admission to copyhold land, or a contribution to the expense
^^ect. i.
Old Forms
of party walls. third class of
common assumpsits covered the case of mutual A promises, as promises of marriage, or undertakings to perform special agreements, such as awards, charterparties, or policies of assurance. " Special assumpsits" lay on ten kinds of undertakings or promises (1) to marry or to do some personal service (2) to provide necessaries for the plaintiff or for some third person (3) on a retainer to serve or employ (4) to perform work, as promises made by surgeons, attorneys etc. (5) to forbear to sue, or to give time for payment of a debt; (6) on a sale or exchange of goods to accept, deliver, take back, or return the goods, also on a warranty as to their quality or value, or the vendor's title to them (7) on bailment of goods, or against carriers, warehousemen etc. (9) as to real or personal (8) to sell, assign, or exchange lands securities (10) to account for profits of lands, or for money and goods. Assumpsit was frequently an alternative form of action. Thus debt " always lay w^here indebitatus assumpsit might be brought (p).
of Action,
Special assumpsits,
56. Covenant (q) was the remedy for the breach of a covenant. Covenant, than one to pay a sum of money, contained in a deed, whether indented or poll(r). The claim was for damages for the non-fulfilment of the covenant. The covenants which gave rise to this form of action were at first only such as related to realty, e.g., to levy a fine, but personal covenants, e.g., to build a house, were sued on as early as the reign other
of
Edward
I.(s).
57. Debt(i) lay to recover definite sums due (a) on records, Debt, judgments (a), recognisances of bail, or recognisances in the nature of a statute merchant (h) (b) on specialties (c), as bills or bonds, agreements to pay money, leases, mortgages etc. (c) on simple contracts (d), as for work done, services rendered, and, generally, wherever indebitatus assumpsit would be appropriate (e) ; (d) in maleficio, as against a sheriff for escape (/), or by common informers and persons aggrieved under penal statutes, even as
Longchamp v. Kenny (1779), 1 Doug. 137 Lamine v. Dorrell Ld. Eaym. 1216; blade's Case (1602), 4 Co. Eep. 92 b Reade v. Johnson (1591), Cro. Eliz. 242; Trever v. Roherts (1664), Hard. 366; Johnson v. May (1683), 3 Lev. 150. The earliest recorded writ is dated 1201. See {q) Fitz. Nat. Brev. 145. Select Civil Pleas (1201), 89, Selden Society, vol. iii., fol. 39. (r) Benushe v. Hildersley (1618), EoU. Abr. 33, pi. 21. By the customs of London and Bristol, the action of covenant lay on agreements not under seal (Fitz. Nat. Brev. 146 a). [s] Fitz. Nat. Brev. 145; Y. B. 21—22 Edw. 1, 111 (EoUs edition). it) Fitz. Nat. Brev. 119. («) Com. Dig. Dett, A. 2. (6) Com. Dig. Dett, A. 8. (c) Com. Dig. Dett, A. 4. (d) Com. Dig. Dett, A. 8, 9. (e) Walker v. Witter (1778), 1 Doug. 1, at p. 6. (/) 1 Fitz. Nat. Brev. 93. [p) See also
(1705), 2
.
