in which they disclosed the cause of action. Whenever, in the count on special assumpsit, the contract sued on contained in its nature the receipt of a consideration delivered or given at the instance of the defendant, upon which a promise to pay money had been expressed, or could be implied by law, one or more of the common counts might generally be added. They were always predicated upon a precedent and existing debt or executed consideration, for which the law raised an implied promise to pay in money. They were all developed from the count on special assumpsit upon an express promise. The courts permitted the jury to infer an actual promise from circumstantial evidence. They next inferred the promise themselves in clear cases, when it was in accord with the natural and evident intention of the parties." The various common counts are as follows: (a) Indebitatus assumpsit. In this count it is alleged that the defendant was indebted to the plaintiff in a certain sum of money; as for real property sold or used and occupied, or for personal property sold; or for personal services rendered; or for money loaned or paid and expended to defendant's use; or for money paid to and received by defendant to plaintiff's use; all of which was incurred in some way at his special instance and request; and that being so indebted, the defendant promised in consideration thereof to pay to the plaintiff the said money. Of the indebitatus counts, those relating to transactions based on the payment or receipt of money are called the money counts; as, money lent to defendant; money paid and expended for his use; and money had and received by defendant to plaintiff's use. (b) Quantum meruit, wherein it is alleged that plaintiff had done certain work for the defendant at his request, and that therefore the defendant is indebted to the plaintiff to the amount that the plaintiff reasonably deserved. (c) Quantum valebant, wherein it is alleged that the plaintiff delivered certain goods to the defendant at his request, and that the defendant owes the plaintiff the amount that these goods are reasonably worth. (d) Insimul computasset, or account stated, which is on a balance agreed between the parties to be due. Account was one of the oldest forms of actions ex contractu. "For several hundred years the action of account occupied no mean place among the common-law remedies. In modern times the bill in equity for an accounting has been found to be better adapted to the enforcement of the obligation to render an account, and the old legal remedy has consequently fallen into disuse. The count in assumpsit for money had and received has also been extended into the field formerly occupied by the action of account.14 SECTION 24. SCIRE FACIAS. Scire facias is in its nature an auxiliary action. It is brought on the record of a prior action and its object is to enforce judgments, recognizances, or other obligations of record, and to continue suits. "Street's Foundations of Legal Liability, Vol. III, p. 99. Vol. XI.-3 The action of trespass was the earliest tort action, and prior to the passage of the Statute of Westminster II, the field of tort and of trespass may be said to have been co-extensive. Since the passage of that statute the field of tort is practically divided between trespass and trespass on the case. The distinction between trespass and trespass on the case has been discussed at some length under the subject of Torts, to which the reader is referred.' SECTION 26. TRESPASS ON THE CASE. Trespass on the case is the most important of the forms of actions growing out of the Statute of Westminster II. In general it gives relief for those wrongful acts not covered by the action of trespass. For a further discussion of this action see the Subject of Torts.2 Trover is a specialized form of trespass on the case, and was the last of the important personal actions to come into existence. Trover bears a close resemblance to the action of detinue sur trover, but was not derived from this action. Trover supplanted detinue, for the same reason that assumpsit did debt-namely, the existence of the common procedural difficulties in debt and detinue. "The most curious feature of the action of trover 1 Vol. IV, Subject 8, Chapter II. • Id. is the fact that it is encumbered with more fictions than any other personal action. The declaration alleges a losing by the plaintiff and a finding by the defendant, but neither of these allegations need be proved. Furthermore, if a bailment is alleged as a means of indicating the manner in which the defendant acquired possession, it need not in modern times be proved. A refusal to surrender on demand is also often alleged in the declaration, but this allegation is likewise immaterial where the taking is tortious. "The gist of the action is found in the allegation that the defendant 'converted the goods to his own use.' But oddly enough, even this allegation is also a sort of fiction; for if words mean anything a conversion to one's own use implies an appropriation under such circumstances as to result in benefit to the converter. But nothing is better established than that this is not necessary. Conversion in law does not mean acquisition of property. It is enough that the owner or person having the right to possession has, under conditions more or less clearly defined, been deprived of dominion over the goods. A withholding of possession under an inconsistent claim of title is sufficient." 3 SECTION 28. REPLEVIN. Replevin is the most effective of all actions for the recovery of specific chattels wrongfully taken or withheld. It lies in favor of the owner of such chattels both for the purpose of recovering the possession of the articles and for damages for their wrongful taking and detention. This action more than any other common law action is regulated by statute in the different states. Street's Foundations of Legal |