c. 76. § 3. § 41. Thus for the convenience of the remedy certain liabilities have been made to figure as though they sprang from contract, and have appropriated the form of agreement. The distinction between assumpsit and debt was practi15 & 16 Vict. cally abolished by the Common Law Procedure Act (1852). The plaintiff was no longer required to specify the form in which his action was brought; he was allowed to join various forms of action in the same suit, and might omit the feigned promise from the statement of the cause of action. The form of pleading, in such cases as resolved themselves into a simple money claim, was reduced to a short [*363] statement of a debt due for money paid or received; and now the Judicature Act has abolished former pleadings, and has substituted for the indebitatus counts a simple indorsement upon the writ of summons. § 49. Judgment. In deference to their historical connexion with contract, I will notice legal relations which once, in the pleader's hands, wore the semblance of offer and acceptance.1 Such relations may arise from the judgment of a court of competent jurisdiction, or from the acts of the parties. As to the former, it is enough to say that the judgment of a court of competent jurisdiction, ordering a sum of money to be paid by one of two parties to another, is not merely enforceable by the process of the court, but can 1 In the admirable treatise by Professor Keener on Quasi-Contracts, the author divides quasi-contracts into three groups: (1) those founded upon a record, as a judgment; (2) those founded upon a statutory, official, or customary duty, as the obligation to pay for a statutory service, like compulsory pilotage, the obligation of a sheriff, or the obligation of a common carrier or innkeeper; (3) those founded upon the doctrine that no one shall be allowed to enrich himself unjustly at the expense of another, as the obligation of an infant or lunatic to pay for necessaries, the obligation of a person to refund money paid under mistake or duress, the obligation of a person to pay for benefits conferred under a contract which through no fault of the plaintiff is incapable of full performance, the obligation of indemnity or contribution, and so on. Ch. I. be sued upon as creating a debt between the parties, Williams whether or no the court be a court of record.1 v. Jones, 628. The acts of the parties may bring about this obligation Acts of either (1) from the admission by A of a claim due to X parties. upon an account stated, or (2) from the payment by A of a sum which X ought to have paid, or (3) from the acquisition by A of money which should belong to X. stated. Irving v. (1) An account stated is an admission by one who is in Account account with another that there is a balance due from him. Such an admission imports a promise to pay upon request, M. & W. and creates an actionable liability ex contractu.2 (2) It is a rule of English law that no man can make himself the creditor of another by paying that other's debt against his will or without his consent.' 106. Hopkins v. Logan, 241. M. &w. J., in John- 43. Money But if A requests or allows X to take up a position in L.. C. P. which he is compelled by law to discharge A's legal liabilities, the law imports a request and promise made by A to X, a request to make the payment, and a promise to repay. paid by A for the use of X. If one of several co-debtors pays the entirety of the debt he may recover from each of the others his proportionate share. In such a case a request to pay and a promise to repay were feigned in order to bring plaintiff within the *remedy of assumpsit, and he could recover his payment from his co-debtors as money paid to their Kemp v. [*364] use.3 A sub-tenant who pays the rent of his lessor to the 1 A judgment is not a contract. O'Brien v. Young, 95 N. Y. 428, H. & W. 76; Morley v. Lake Shore Ry., 146 U. S. 162. 2 An account stated rests on assent, and is often in the nature of a compromise. Dunham v. Griswold, 100 N. Y. 224. If in parol it has no effect where the original claim is barred and the statute requires a written acknowledgment to revive it. Hoyt v. Wilkinson, 10 Pick. (Mass.) 31. The assent may be implied. Leather Mfrs. Bk. v. Morgan, 117 U. S. 96. 8 Contribution and indemnity are not founded upon contract. Tobias v. Rogers, 13 N. Y. 59; Bailey v. Bussing, 28 Conn. 455. Finden, Jones v. superior landlord under a threat of distress to his goods," may recover the amount so paid or deduct it from his rent; 3 Exch. 742. and a man who in the course of business leaves his goods on the other's premises and has to pay the other's debt to prevent distraint of his goods may in like manner recover ST. R. 309. his money.1 Exall v. England v. Money received by X for the use of A. We might multiply instances of this kind of liability, but we must not forget that legal liability incurred by X on behalf of A without any concurrence or privity on the part of A, will not entitle X to recover for money which under such circumstances he may pay to A's use. The liability must have been in some manner cast upon X by A. Otherwise the mere fact that X has paid under compulsion of law what A might have been compelled to pay, will give to X no right of action against A. X may have been acting for his own benefit and not by reason of any request or act of A.2 (3) There are many cases in which A may be required to repay to X money which has come into his possession under circumstances which disentitle him to retain it. This class of cases, though at one time in the hands of Lord Mansfield it threatened to expand into the vagueness of moral obligation,' is practically reducible to two groups 2 Burr. 1010. of circumstances now pretty clearly defined. Moses v. The first of these are cases of money obtained by wrong, such as payments under contracts induced by fraud, or duress; the second are cases of money paid under such a The goods of a lodger are protected from distress by the Lodger Protection Act, 34 & 35 Vict. c. 79. 1 Wells v. Porter, 7 Wend. (N. Y.) 119. 2 See criticism of England v. Marsden in Keener, Quasi-Contracts, pp. 390-395. 3 Carew v. Rutherford, 106 Mass. 1; Swift Co. v. United States, 111 U. S. 22; Cook v. Chicago R., 81 Iowa, 551; Duval v. Wellman, 121 N. Y. 156, H. & W. 402. mistake of fact as creates a belief that a legal liability rests Such cases lie out The liability to repay money paid for a consideration which has wholly failed is sometimes classed among the foregoing obligations, but is based upon genuine contract, though shortly stated in the form of an indebitatus count. 1 Appleton Bank v. McGilvray, 4 Gray (Mass.), 518; Mayer v. New York, 63 N. Y. 455; Wood v. Sheldon, 42 N. J. L. 421; McGoren v. Avery, 37 Mich. 120. |