any special count in cases of this nature. Supposing an actual promise had been made, there could be no doubt but that the general form of declaring would have been proper; and the court cannot judge from the record but that there has been an express promise. The great objection raised however was, that the claim was against common right; and therefore that the plaintiff must shew his title. But where indebitatus assumpsit is brought for a fine on admission to copyhold lands, or for the profits of an office, the court are not informed by the record what the plaintiff's title is, nor can the defendant know on what title the plaintiff means to rely. In assumpsit greater latitude is allowed than in debt; in the former of which actions, the only question is whether there is sufficient evidence of a legal consideration to support or raise the promise stated. It is true that Eyre, C. J. thought that it was extraordinary to admit these general counts in the cases of tolls and copyhold fines, and wondered that the courts ever went that length". But he did not, nor was he called upon to give any judicial opinion on the subject, ment of cat tle. Although it is not sufficient to declare in indebitatus For agistassumpsit generally, that the defendant was indebted, and at common law an action of this nature could not be maintained for any debt concerning the realty; yet the plaintiff might declare, in this form of action, for any debt of a personal nature, and in respect of a personal thing, when severed from, or which merely took place upon the realty: therefore, where the plaintiff declared that the defendant was indebted for agistment For growing crops. For tithes. and feeding of his beasts on the plaintiff's ground, and for wheat and other merchandizes by him had and received, it was held, on a writ of error, that the pasturing, as well as the wheat, &c. being personal things for which assumpsit would lie, the declaration was good; and the judgment was affirmed". So, the plaintiff may declare in indebitatus assumpsit for divers crops of wheat, or the like, sold by him to the defendant, and by him, in consequence of such sale, reaped and taken to his own use; and on a quantum meruit, in consideration of his having permitted the defendant to depasture with cattle other crops, or the moiety of other crops. But the plaintiff cannot declare generally for crops bargained and sold, or for fixtures or goods sold and delivered, or the like, where his claim arises out of an entire agreement for a lease with the crops and fixtures on the premises; for by so doing, the defendant would be prevented from shewing a defect of title to grant the lease, without which the crops and fixtures might be of little or no use to him. In such case therefore, the plaintiff must declare specially upon the agreement". The plaintiff may declare in indebitatus assumpsit for tithes arising from such a vicarage, without saying that they were sold or delivered. At all events after verdict such a declaration will be good; for it may be intended that the tithes were severed, and saying that the defendant was indebted for them implies that they were sold: and although it should be objected that the "Gardiner v. Bellingham, Hob. 5. vicar Poulter T. Killingbeck, 1 B. & P. 397. P Neal v. Viney, 1 Camp. 471. Ante 12. 463. vicar is to have, and not to pay tithes, it may be answered that an abbot, or other person, might have had a portion of them out of the vicarage, which is now come to the plaintiff. As soon as a negro arrives in England he becomes For a negro. free, for one may be a villain in England, but not a slave. In a villain the owner has a property, but it is an inheritance; in a ward he has a property, but it is a chattel real. The law takes no notice of a negro; and therefore the plaintiff cannot declare in indebitatus assumpsit for a negro brought into England, and sold in this country'. Where the plaintiff declared in that form of action, for a negro sold by the plaintiff to the defendant, to wit, at London, &c. Holt, C. J. at first thought, that it should be averred in the declaration that the sale was in Virginia, or some other country by the laws of which negroes are saleable; for the laws of England do not extend to Virgiuia, which being a conquered country their law is what the king pleases, and our judges cannot take notice of it but as set forth. Afterwards Holt, C. J. directed that the declaration should be amended, by saying that the defendant was indebted to the plaintiff for a negro sold here at Loudon, but that the said negro at the time of the sale was in Virginia, and that negroes by the laws and statutes of Virginia are saleable as chattels. However, the reporter adds, that the Attorney General coming in said, they were inheritances and transferable by deed though not without; and nothing was done'. 4 Wright v. Beal, 1.Lev. 141. 2 Sid. 223. S. C. * Smith v. Brown, Salk. 666. s Id. t Id. CHAPTER XV. OF THE COUNTS ON A QUANTUM MERUIT, OR Quantum meruit and valebant, what. Now seem ACOUNT on a quantum meruit is, where the plain tiff declares that in consideration of his having performed some personal service for the defendant, he promised to pay him so much as he therefore deserved, and then states how much he deserved for such service. A count on a quantum valebant is, where the plaintiff declares that in consideration of his having parted with his real or personal property to the defendant, he promised to pay him so much as the goods or lands, &c. were worth, and then states how much the worth of them was. At this day, there can be no doubt whatever but that a count on a quantum meruit, or quantum valebant, is good, although it was once doubted for, id certum est, quod certum reddi potest. Formerly, the plaintiff in declaring for a simple conunnecessary tract debt in assumpsit, instead of adopting the present short form of a count in indebitatus assumpsit, in his first count set forth all the particulars of the con tract, a Cro. Jac, 370. $18. Cro. Eliz. 149. tract, so that, lest he should fail in proving the parti- between quan. mer. val. Although there is a distinction between a quantum Distinction meruit and a quantum valebant, the former being more properly applicable to a promise to satisfy plaintiff for and quan. his personal service, and the latter for his property, yet many pleaders apply the former to both cases, and there seems to be no reason why they may not be used indiscriminately'; for it may with propriety be said, that a man deserves a certain sum for his property, or that his service or labor is worth so much. Of the two indeed, the count on a quantum meruit is most spoken of in our law books, and most frequently used; thus, it is very common to declare that in consideration of the plaintiff's providing meat and drink, &c. for the defendant, or of his suffering the defendant to use and occupy his land, &c. the defendant promised to pay him as much as he deserved. The case next cited fur € 3 Blac. Com, 294. Ante 1, 2. d2 Saund. 122. n. 2. acc. Mod. 190. Salk. 558. 3 Keb. 610. nishes 3 |