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Page:Harvard Law Review Volume 2.djvu/398

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38o

HAR YARD LA W RE VIE JV.

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 diffi- culties 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 enlarg- ing 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 iox work and labor ;^ and one who converted the plaintiff's goods, must pay their value in an action for goods sold and delivered.^

But Indebitattis 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 occu- pier of land was to pay either a defined or a reasonable compen- sation to the owner. Hence the impossibility of charging a trespasser in assumpsit for use and occupation.

7, B, Ames.

1 Supra, 67; Thomas v. Whip, Bull. N. P. 130; Tryon v. Baker, 7 Lans. 511, 514.

« Supra, 68; Stockell v, Watkins, 2 Gill A J. 326.

> The writer is indebted to Professor Keener for a correction of the statement {supra, 68) that the count for goods sold and delirered was nerer allowed against a converter. See 2 Keener, Cases on Quasi-Contracts, 606, 607, n. i ; Cooley, Torts (2 ed.), 109, no; Pomeroy, Rtmedies (2 ed.), §§ 568, 569.