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3. Or for goods delivered, to be sold and accounted for in New York currency; and such recovery may be had under the common counts.
Pope udmr. v. Robinson, 1 S. 415. 4. When a debt was due by A. principal, and B. & C. as securities, to D.; and B. for valuable consideration received of A., promises to pay it to D. and fails to do so, by reason of which C. pays it-A, may maintain assumpsit for C.'s use against B. for his failure to pay. Gee admr. v. Nicholson, 2 S.512. 5. Assumpsit does not lie upon an endorsement under seal of a specialty.*
Sommerville v. Stephenson & Johnston, 3 S. 271. 6. May be maintained by lessor on a parol contract for five years, when lessee has enjoyed possession for one year, for the use and occupation for that period :
Hays v. Goree, 4 S. & P. 170. 7. Or to recover back money paid upon a judgment which is afterwards reversed : But it cannot be maintained by garnishee, when judgment was reversed for mere irregularity, and when the debt was due by defendant in attachment:
Duncan v. Wares, ex'r. 5 S. & P. 119. 8. Or for money paid on a parol contract for the purchase of land:
Allen v. Booker, 2 S. 21. 9. Or for the balance of purchase money when Chancery would enforce a specific performance.
Meredith v. Naish, 3 S. 207. 10. Assumpsit does not lie at common law for rent except on an express promise made at the time of demise. Bell v. Ellis heirs, í S. & P. 294.
11. The statute 1812, in relation to the action of assumpsit for rent, applies only to cases of demise, and when there exists an agreement creating the relation of landlord and tenant.
II. On an express Promise.
12. A promise to board the plaintiff a certain time, must be specifically declared on, and cannot be given in evidence under the common counts.
Haynes v. Woods, 1 S. 12. 13. On a contract whereby defendant promised to deliver goods payable on delivery-proof by plaintiff that he was in good credit, and that defendant had sold the goods to another, is sufficient, and other evidence of readiness to pay is unnecessary.
Anderson v. Gath, 1 S. 150.
III. Assumpsit on an implied promise, and the general indebitatus asumpsit ;
and where the party may recover on the implied promise, notwithstanding an express agreement-money paid; goods sold; work and labor; money had and received.
14. Indebitatus assumpsit cannot be maintained for money paid out and expended, without proof that it was at the request of the defendant.
Weakley v. Brahan f. Atwood, 2 S. 500. 15. A creditor receiving from one of a firm, an endorsed note in exchange for a liability of the firm, may maintain assumpsit on the original consideration, when the names on the substituted note of two of the parties are forgeries, and the other party is insolvent.
Nance & Co. v. Pope & Hickman, 1 S. 220–354.
* This decision subsequently overruled.
16. Where money is paid by one on a joint enterprise, and the other joint contractor fails or refuses to comply with his portion of the contract, assumpsit lies to recover it back.
Maddera v. Smith, 3 S. 119. 17. On account stated, declared on in assumpsit-plaintiff may introduce an account stated under any of the common counts.
Stowe v. Sewall, 2 S. & P. 67. 18. Under the common count, evidence not admissible to prove a contract to board plaintiff for a year.
Haynes v. Woods, 1 S. 12. 19. To support a common count, it is necess
essary to prove every thing which it would be necessary to aver if the count were special.
Landrum v. Brookshire ex'tr. 1 S. 252. 20. Though under the common counts, it is not necessary to state the particular goods sold, work done, &c., yet the consideration of the indebtedness must sufficiently appear to show it to be a simple contract debt; and any general words by which this will appear, will be sufficient.
Maury v. Olivé, 2 S. 472. 21. In assumpsit against partners, under a common count, proof of a promise by one in the name of the firm, is not sufficient : there must be a joint promise proved, or proof of the existence of the co-partnership.
Finlay & Buchanan v. Stephenson, 3 $. 48. 22. When plaintiff fails in proving a special contract, he may recover for services performed in the fulfilment of it, under the common counts.
McMillian v. Wallace, 3 S. 185. Blair et al. v. Asbury, 4 P. 435. 23. Though there be a special contract for the rent of land, the plaintiff may, under the statute, recover for use and occupation, a sum not exceeding the price fixed by contract.
Ibid. 24. So under the common counts, a party may recover for what he has performed under a special contract, (though in a manner varying from the terms,) notwithstanding there remains some part of the defendant's agreement unfinished.
Hancock v. Turner f. Evans, 4 S. & P. 262. 25. As between the original parties, a bill or note is prima facie evidence of money lent by the payor to the maker, and
may be given in evidence under the common counts; and an endorsement purports a loan by the endorsee to the endorser,
Hightower v, Ivey, 2 P, 308, 26. A recovery cannot be had under a common court, when the evidence shows a cause of action upon which there might be a recovery upon a special count.
Clements admr. v. Eslava, 4 P. 502. 27, Thus under a general count for money for the price of mules, a recovery cannot be made on proof that the mules were to be paid for in lumber, which had not been delivered.
Ibid. 28. A writing offered in evidence under the common counts, its execution must be proved.
Henly v. Willis Lang f. Co. 5 P. 154. 29. Under these counts a promissory note imports its own consideration.
Ibid. 30. Count for “money had and received,” a note is admissible in evidence.
Gillaspie et al. v. Wesson, 7 P. 454. 51. When A. in consideration of certain labor, covenants to convey certain lands to B., and B. ascertaining A. has no title, abandons the contract; he cannot under the common count, recover for the work actually performed.
Rieves v. Wallace, 1 P. 116.
See Evidence. Interest. Frauds. Judgment. Landlord and Tenant. Pleadings. Physicians. Verdict.
I. OF THE CASES IN WHICH IT MAY ISSUE; OF THE BOND REQUIRED BY
STATUTE, AND OF THE PROPERTY AND INTERESTS LIABLE TO BE
ATTACHED. II. OF THE WRIT, SERVICE, LEVY AND LIEN. III. PROCEEDINGS AGAINST GARNISHEE; HIS RETURN, ISSUE THEREON AND
JUDGMENT AGAINST GARNISHEE AND DEFENDANT.
1. Of the cases in which it may issue-Bond—Subject of Attachment. 1. In attachment against absent debtor, the plaintiff should be a resident of the state, and this must appear by the record, though it need not be stated in the affidavit.
Peters f. Stebbins v. Bower, A. R. 69. 2. It is not necessary that the attachment bond should be conditioned for the payment of costs.
Harris & Farrow v. Clapp, A. R. 328. 3. If conditioned for the prosecution of the attachment to effect, and for paying the defendant all such damages as he may sustain by the wrongful or vexatious suing out such attachment—it is sufficient,
Saltmarsh & Beck v, Evans, 1 S. 132. 4. Absconding within the state, is alone a sufficient ground for an attachment, whether the plaintiff or defendant, or both, be or be not resident within the state; so that a plea that defendant is a resident citizen of another state, and was never within this state with intention of residing there—held bad.
Middlebrook v. Ames, 5 S. & P. 158. 5. The plaintiff must show that defendant is indebted to him in a sum of money past due, or else in
sum to be paid at a future day; therefore when the writ states that plaintiff is security to a draft drawn on T. & L. for defendant, which he will probably have to pay, or on which suit will have to be brought in another state, it cannot be sustained.
Benson v. Campbell, 6 P. 455. 6. A defective bond may be amended by the substitution of a new and perfect one, and if plaintiff when required by the court to amend, decline doing so, the attachment may be quashed.
Lowry v. Stowe, 7 P. 483.
II. Of the Writ, Service, Levy and Lien.
7. The writ must pursue the affidavit, and be certain in its terms as to the ground of its issuance, or else it will be quashed.
Woodley v. Shirly, A. R. 14. 8. Under the attachment laws, a levy of the writ is equivalent to a personal service; and the summoning of a garnishee (if indebted to defendant in attachment) is to this end a levy upon property.
Thompson v. Allen, 4 S. & P. 184.
9. So, to give a court jurisdiction of an attachment cause, it is sufficient that the summons of Garnishment has been executed upon one indebted to defendant at time of service of process.
Ibid. 10. If Garnishee answer without objecting to a defect in the process against him, he cannot be permitted on writ of error to alledge that he was not served according to law.
• Smith v. Chapman & Brother, 6 P. 365. - 11. The seal of a justice issuing an attachment placed immediately after his name, is sufficient compliance with the statute.
Lowry v. Stowe, 7 P. 483. • 12. The statute 1807 which provides that the cause of action shall be indorsed on the writ, applies only to initiatory process.
Ibid. 13. The giving of a replevy bond under an attachment, does not discharge the lien first acquired on the property under the attachment.
McRae f. Augustin v. McLean, 3 P. 139. 14. Attachment creates a lien upon property levied on which the right to replevy cannot impair, if it be not done by giving special bail.
Cury v. Gregg, 3 S. 433. 15. Attachment against non-resident, there must be an order of court limiting the time for defendant to appear, put in bail, and plead, and notice of publication must issue, or its omission be accounted for.
Harriss & Farrow v. Clapp, A. R. 328.
III. Proceedings against Garnishee; his return; issue thereon, judgment
against Garnishee and Defendant.
16. Part of a debt being attached in defendant's hands, he shall be protected against a second recovery as to so much, while the proceedings though erroneous remain unreversed.
Tubb v. Madding, A. R. 129.
17. Garnishee returns that before he was summoned, he was notified that payee hadt ransferred his agent's receipt for his note to T., whose agent had presented him the note, and that he had paid him a part and promised to pay the residue on a contingency which had happened.—Held that this debt was not the subject of an attachment against the payee.
King v. Murphy, 1 S. 228. 18. The answer of a garnishee is to be taken as strictly true, and if a deed is appended, it is to be considered genuine, unless the answer be traversed.
Robinson v. Rapelye 8. Smith, 2 S. 86. 19. In trying the question of garnishee's indebtedness, no formal issue is required further than a denial of his indebtedness and an issue by plaintiff averring it; and if such issue be found against garnishee, he is liable for costs.
Thompson v. Allen, 4 S. & P. 184. 20. A garnishee cannot recover back money paid on a judgment which has been reversed for mere irregularity, and when the amount was justly due by defendant to plaintiff in attachment; and a payment thus made by garnishee, will discharge him from all liability to defendant as his creditor.
Duncan v. Wares. ex'r. 5 S. & P. 119. 21. In contesting the answer under the statute, evidence cannot be introduced by plaintiff to show that a note due by the garnishee to defendant in attachment, has been fraudulently assigned by the latter to a third person to avoid the debt attached. Simpson & Gordon v. Tippen, 5 S. & P. 208. 22. When A. having purchased a note of B. drawn in his favor by C. & D.
and E. having a judgment against B., garnishees C. as B.'s debtor-C. having paid the amount of the note on judgment against him to E. Held that A. could not recover against C. or E. the amount thus paid, no notice of his possession of the note having been given to C. & D. or E.
Herndon v. Swearingen, 1 P. 192. 23. The answer that debtor had placed funds in the garnishee's hands which he believed belonged to the United States,-held not sufficient uncontroverted to authorize a judgment.
Atkinson, 2 P.546. 24. An administrator cannot be summoned as garnishee, and judgment rendered against him within six months after grant of letters.
Presnall v. Mabry, 3 P. 105. 25. Proceedings against garnishee before Justices of the Peace, when removed to a higher court, are triable de novo, and the garnishee has a right to
Colman v. Waters, 3 P. 381. 26. Answer states that defendant held his note for $1200, to which he had a set-off, and that until a settlement, he knows not what will be due to him judgment cannot be rendered against garnishee for the $1200, subject to the set-off.
Morgan, 1 S. 9. 27. Attachment against a non-resident-garnishee at return term failed to answer, and no proceedings were then hud as to him, but an order of publication was then made as to defendant; at the next term judgment by default
, nisi, was taken against garnishee—held that this was regular, and that there was no discontinuance as to garnishee.
Robinson & Davenport v. Starr, 3 S. 90. 28. When an answer may warrant more than one judgment, it would be irregular, if not error, for justice of the peace to render but one on two or more executions returned nulla bona, notwithstanding they might be at the instance of the same party against the same defendant.
Witherspoon v. Barber, 3 S. 335. 29. In a suit by garnishment, judgment cannot be rendered against garnishee for the costs on the original proceedings.
Ibid. 30. No judgment can be rendered against garnishee on his answer when there is not a clear admission of a legal debt due, or to become due to the defendant in attachment,
Preswall v. Marbry, 3 P. 105. 31. Judgment in garnishment against the maker of a note, is no defence in an action by the bearer thereof, if he had notice of the transfer of the note prior to his answer.
Colvin v. Rich, 3 P. 175. 32. Judgment cannot be rendered against garnishee on his answer when he does not admit an indebtedness, and when the answer stated that he was indebted in a certain sum to be paid in "store accounts,” the court having no authority to change the liabilities and charge him for so much money.
Smith v. Chapman f. Brother, 6 P. 365. 33. In such case the proper mode would be to proceed in equity, to have the demands assigned and collected for the satisfaction of the judgment in attachment.
Ibid. 34. The affidavit of a garnishee, taken before a justice of the peace and without summons, furnishes no right to proceed to judgment against defend
Rapelye & Co. v. Ware, 1 S. 33.
IV. Of the Plea and Affidavit.
35. A defendant to an original affidavit may plead in abatement, traversing the grounds of attachment.
Brown v. Massy, 3 S. 226. 36. The statute 1814, relating to attachments, concerns those only issued by justices of the peace.