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Page:Harvard Law Review Volume 2.djvu/86

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Finally, under the influence of Lord Mansfield, the action was so much encouraged that it became almost the universal remedy where a defendant had received money which he was ** obliged by the ties of natural justice and equity to refund." ^

But one is often bound by those same ties of justice and equity to pay for an unjust enrichment enjoyed at the expense of another, although no money has been received. The quasi-contractual liability to make restitution is the same in reason, whether, for example, one who has converted another's goods turns them into money or consumes them. Nor is any distinction drawn, in gen- eral, between the two cases. In both of them the claim for the amount of the unjust enrichment would be provable in the bank- ruptcy of the wrong-doer as an equitable debt,^ and would survive against his representative.® Nevertheless, the value of the goods consumed was never recoverable in Indebitatus Assumpsit. There was a certain plausibility in the fiction by which money acquired as the fruit of misconduct was treated as money received to the use of the party wronged. But the difference between a sale and a tort was too radical to permit the use of Assumpsit for goods sold and delivered where the defendant had wrongfully consumed the plaintiff's chattels.

The same difficulty was not felt in regard to the quasi-contractual claim for the value of services rendered. The averment, in the count in Assumpsit, of an indebtedness for work and labor was proved, even though the work was done by the plaintiff or his servants under the compulsion of the defendant. Accordingly, a defendant, who enticed away the plaintiff's apprentice and em- ployed him as a mariner, was charged in this form of action for the value of the apprentice's services.*

By similar reasoning, Assumpsit for use and occupation would be admissible for the benefit received from a wrongful occupation of the plaintiff's land. But this count, for special reasons connected with the nature of rent, was not allowed upon a quasi-contract*

In Assumpsit for money paid the plaintiff must make out a payment at the defendant's request. This circumstance prevented

1 Moses V. MacFerlan, 2 Burr. 1005, 1012. « Ex p. Adams, 8 Ch. Div. 807, 819.

  • Phillips V. Homfray, 24 Ch. Div. 439.
  • Lightly V, Clouston, i Taunt. 112. See, also. Gray v, HiU, Ry. & M. 4aa
  • But see Mayor v, Sanders, 3 B. & Ad. 41 1.