ASSIZE OF MORT D' ANCESTOR. The name, of an ancient writ1, now obsolete2. It might have been sued out by one whose father, mother, brother, &c., died seised of lands, and tonements, which they held in fee , and which, after their death, a stranger abated3. Reg. Orig. 223. See Mort d' Ancestor.
ASSOCIATE. This term is applied4 to a judge who is not the president of a court; as associate judge.
ASSOCIATION. The act of a number of persons uniting together for some purpose; the persons so joined are also called an association. See Company.
ASSUMPSIT, contracts. An undertaking5 either express or implied, to perform a parol agreement. 1 Lilly's Reg. 132.
2. An express assumpsit is where one undertakes verbally or in writing, not under seal, or by matter of record, to perform an act, or to pay a sum of money to another.
3. An implied assumpsit is where one has not made any formal promise to do an act or to pay a sum of money to another, but who is presumed from his conduct to have assumed to do what is in point of law just and right; for, 1st, it is to be presumed that no one desires to enrich himself at the expense of another; 2d, it is a rule that he who desires the antecedent, must abide6 by the consequent; as, if I receive a loaf of bread or a newspaper daily sent to my house without orders, and I use it without objection, I am presumed to have accepted the terms upon which the person sending it had in contemplation, that I should pay a fair price for it; 3d, it is also a rule that every one is presumed to assent8 to what is useful to him. See Assent
ASSUMPSIT, remedies, practice., A form of action which may be defined to be an action for the recovery of damages for the non-performance of, a parol or simple contract; or, in other words, a contract not under seal, nor of record; circumstances which distinguish this remedy from others. 7 T. R. 351; 3 Johns. Cas. 60. This action differs from the action of debt; for, in legal consideration, that is for the recovery of a debt eo nomine, and in numero, and may be upon a deed as well as upon any other contract. 1 h. Bl. 554; B. N. P. 167. It differs from covenant9, which, though brought for the recovery of damages, can only be supported upon a contract under seal. See Covenant.
2. It will be proper to consider this subject with reference, 1, to the contract upon which this action may be sustained; 2, the declaration 3, the plea; 4, the judgment10.
3. – 1. Assumpsit lies to recover damages for the breach11 of all parol or simple contracts, whether written or not written express or implied; for the payment of money, or for the performance or omission12 of any other act. For example, to recover, money lent, paid, or had and received, to the use of the plaintiff; and in some cases, where money has been received by the defendant13, in consequence of some tortious act to the plaintiff's property, the plaintiff may waive14 the tort, and sue the defendant in assumpsit. 5 Pick. 285; 1 J. J. Marsh15. 543 3 Watts16, R. 277; 4 Binn. 374; 3 Dana, R. 552; 1 N. H. Rep. 151; 12 Pick. 120 4 Call. R. 461; 4 Pick. 452. It is the proper remedy for work and labor17 done, and services rendered 1 Gill, 95; 8 S. & M. 397 2 Gilman, 1 3 Yeates, 250 9 Ala. 788 but such work, labor, or services, must be rendered at the request, express or implied, of the defendant; 2 Rep. Cons7. Ct. 848; 1 M'Cord, 22; 20 John. 28 11 Mass. 37; 14 Mass. 176; 5 Monr. 513 1 Murph. 181; for goods sold and delivered; 6 J. J. Marsh. 441; 12 Pick. 120; 3 N. H. Rep. 384; 1 Mis. 430; for a breach of promise of marriage. 3 Mass. 73 2 Overton, 233 2 P. S. R. 80. Assumpsit lies to recover the purchase money for land sold; 14 Johns. R. 210; 14 Johns. R. 162; 20 Johns. R. 838 3 M'Cord, R. 421; and it lies, specially18, upon wagers19; 2 Chit. PI. 114; feigned20 issues; 2 Chit. PI. 116; upon foreign judgments21; 8 Mass. 273; Dougl. 1; 3 East, 221; 11 East, 124; 3 T. R. 493; 5 Johns. R. 132. But it will not lie on a judgment obtained in a sister state. 1 Bibb, 361 19 Johns. 162; 3 Fairf. 94; 2 Rawle, 431. Assumpsit is the proper remedy upon an account stated. Bac. Ab. Assumpsit, A. It will lie for a corporation, 2 Lev. 252; 1 Camp. 466. In England it does not lie against a corporation, unless by express authority of some legislative22 act; 1 Chit. PI. 98; but in this country it lies against a corporation aggregate23, on an express or implied promise, in the same manner as against an individual. 7 Cranch, 297 9 Pet. 541; 3 S. & R. 117 4 S. & R. 16 12 Johns. 231; 14 Johns. 118; 2 Bay, 109 1 Chipm. 371, 456; 1 Aik. 180 10 Mass, 397. But see 3 Marsh. 1; 3 Dall. 496.
4. – 2. The declaration must invariably disclose the consideration of the contract, the contract itself, and the breach of it; Bac. Ab. h. t. F 5 Mass. 98; but in a declaration on a negotiable instrument under the statute24 of Anne, it is not requisite25 to, allege26 any consideration; 2 Leigh, R. 198; and on a note expressed to have been given for value received, it is not necessary to aver27 a special consideration. 7 Johns. 321. See Mass. 97. The gist28 of this action is the promise, and it must be averred29. 2 Wash. 187 2 N. H. Rep. 289 Hardin, 225. Damages should be laid in a sufficient amount to cover the real amount of the claim. See 4 Pick. 497; 2 Rep. Const. Ct. 339; 4 Munf. 95; 5 Munf. 23; 2 N. H. Rep. 289; 1 Breese, 286; 1 Hall, 201; 4 Johns. 280; 11 S. & R. 27; 5 S. & R. 519 6 Conn. 176; 9 Conn. 508; 1 N. & M. 342; 6 Cowen, 151; 2 Bibb, 429; 3 Caines, 286.
5. – 3. The usual plea is non-assumpsit, (q. v.) under which the defendant may give in evidence most matters of defence. Com. Dig. Pleader, 2 G 1. When there are several defendants30 they cannot plead the general issue severally; 6 Mass. 444; nor the same plea in bar, severally. 13 Mass. 152. The plea of not guilty, in an action of assumpsit, is cured by verdict. 8 S. & R. 541; 4 Call. 451. See 1 Marsh, 602; 17 Mass. 623. 2 Greenl. 362; Minor31, 254 Bouv. Inst. Index, h. t.
6. – 4. Judgment. Vide Judgment in Assumpsit. Vide Bac. Ab. h. t.; Com. Dig. Action upon the Case upon Assumpsit; Dane's Ab. Index, h. t.; Viner's Ab. h. t.; 1 Chit. Pi. h. t.; Petersd. h. t.; Lawes PI. in Assumpsit the various Digests, h. t. Actions; Covenant; Debt; Indebitatus assumpsit; Padum Constitutiae pecuniae.
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