BLACKSTONES COMMENTARIES
BLACKSTONES COMMENTARIES
Book III from Page 159From these express contracts the transition is easy to those that are only implied by law. Which are such as reason and justice dictate, and which the law therefore presumes that every man has contracted to perform, and upon this presumption, makes him answerable to such persons as suffer by his non performance. And thus it that every person[160] is bound and hath virtually agreed to pay such particular sums of money , as are charged on him by the sentence, or assessed by the interpretation of the law. For it is part of the original contract, entered into by all mankind who partake the benefits of society, to submit in all points to the municipal constitutions and local ordinances of the state, of which each individual is a member. Whatever therefore the law orders any one to pay, that becomes instantly a debt, which he has beforehand contracted to discharge. And this implied contract it is, that gives the plaintiff a right to institute a second action, founded merely on the general contract, in order to recover such damages , or sum of money as are assessed by the jury and adjudged by the court to be due from the defendant to the plaintiff in any former action. So that if he hath once obtained judgment against another for a certain sum, and neglects to take out execution thereupon, he may afterwards bring an action of debt upon this judgment, and shall not be put on proof of the original cause of action; but upon shewing the judgment once obtained , still in force but unsatisfied, the law immediately implies that by the original contract of society the defendant has contracted a debt, and is bound to pay it. This method seems to have been invented when real actions were more in use that at present and damages were permitted to be recovered thereon; in order to have the benefit of a writ of capias to take the defendants body in execution for those damages, which process was allowable in an action of debt. ( in consequence of the statute 25 EDW iii C 17) but not in an action real. Wherefore since the disuse of those real actions, actions of debt in personal suits have been pretty much discountenanced by the courts, as being generally vexatious and oppressive by harassing the defendant with two actions instead of one.
On the same principle it is ( of an implied original contract to submit to the rules of the community whereof we are members) that a forfeiture imposed by the bye laws and [161] private ordinances of a corporation upon any that belong to the body, or an amerciament set in a court-leet or court- baron upon any of the suitors to the court( for otherwise it will not be binding) immediately create a debt in the eye of the law: and such forfeiture or amerciament , if unpaid, work an injury to a party or parties entitled to receive it; for which the remedy is by action of debt.
The same reason may with equal justice be applied to all penal statutes , that is , such acts of parliament whereby a forfeiture is inflicted for transgressing the provisions therein enacted. The party offending is here bound by the fundamental contract of society to obey the directions of the legislature, and pay the forfeiture incurred to such persons as the law requires. The usual application of this forfeiture is either to the party grieved or else to any of the kings subjects in general. Of the former sort is the is the forfeiture inflicted by the Statute of Westminster( explained and enforced by several subsequent statutes) upon the hundred wherein a man is robbed, which is meant to oblige the hundredors to make hue and cry after the felon; for if they take him, they stand excused. But otherwise, the party robbed is entitled to prosecute them , by a special action on the case , for damages equivalent to his loss. And of the same nature is the action given by the statute 9 Geo 1 C 22, commonly called the black act, against the inhabitants of any hundred, in order to make satisfaction by damages to all persons who have suffered by the offences enumerated and made felony by that act. But more usually these forfeitures created by statute are given at large to any common informer, or in other words to any such person or persons as will sue for the same. And hence such actions are called popular actions, because they are given to the people in general. Sometimes one part is given to the king, to the poor or to some public use, and the other part to the informer or prosecutor, and then the suit is called [162] a qui tam action, because it is brought by a person ” qui tam pro domine rege quam pro se ipso in hac parte sequitor.” If the king therefore commences this suit, he shall have the whole forfeiture. But if anyone hath begun a qui tam or popular action, no other person can pursue it; and the verdict passed upon the defendant in the first suit is a bar to all others, and conclusive even to the king himself. This has frequently occasioned offenders to procure their own friends to begin a suit, in order to forestall and prevent other actions; which isn some measuer is prevented by a statute made in the reign of a very sharp sighted prince in penal laws; 4 HEN VII c 20, which enacts that no recovery , otherwise than by verdict, obtained by collusion in a popular action , shall be a bar to any other action prosecuted bona fide. A provision that seems borrowed from the rule of the Roman law, that if a person was acquitted of any accusation, merely by the prevarication of the accuser , a new prosecution might be commenced against him.
A second class of implied contracts are such as do not arise from the express determination of any court, or the positive direction of any statute, but from natural reason and the just construction of the law…………[163] …3. A third species of implied assumpsit is when one has had and received money belonging to another, without any valuable consideration given on the receivers part, for the law construes the this to be money had and received for the use of the owner only, and implies that the person receiving promised and undertook to account for it to the true proprietor. And if he unjustly detains it, an action on the case lies against him for the breach of such implied promise or undertaking. And he will be made to repair the owner in damages , equivalent to that which he has detained in violation of such his promise. …….It lies for money paid by mistake, or on a consideration which happens to fail, or through imposition, extortion, or oppression, or where any undue advantage is taken of the plaintiffs situation. …[164] but if no account has been made up, then the legal remedy is by bringing a writ of account , de computo, commanding the defendant to render a just account to the plaintiff or shew to the court good cause to the contrary. ….. But this defect after many fruitless attempts in parliament , was at last remedied by the Statute 4 Anne c 16 which gives an action of account against the executors and administrators…….
[165] 6. the last class of contracts , implied by reason and construction of law, arise upon the supposition , that everyone who undertakes any office, employment, trust or duty, contracts with those who employ or entrust him, to perform it with integrity, diligence and skill. And if by his want of any of those qualities, any injury accrues to individuals, they therefore have their remedy in damages by a special action on the case……