And it seems that although interest, or even compound interest, may be recovered where there has been a course of dealing between the parties, or usage to that effect (1), yet that a debtor is not bound or affected by the custom of his bankers to charge interest upon interest, by making rests in their accounts, unless it can be proved he was aware of such their practice (m). But when such invariable usage is proved, it is to be considered the basis of the contract between the parties, and their respective rights and liabilities are precisely the same as if, without any usage, they had entered into a special agreement to the like effect (n). And therefore, where it was proved that, by the usage of trade in the river Thames, credit is given by a shipwright for repairs of a ship, if there be no agreement as to the time of payment, it was held by Lord Ellenborough, that the parties must be supposed to have dealt on the terms of credit; and therefore that the defendant, a shipwright, who repaired the plaintiff's vessel, had no lien on it for the amount (o). In a case before Best, C. J., at Nisi Prius (p), his lordship held, that if there be a general usage applicable to a particular trade or profession, a person employing another in such trade or profession will be taken to have dealt with him according to that usage; but that a usage for a veterinary surgeon to charge for his attendance, "when there was not much medicine required," was too uncertain. But where K., an architect, being retained by the defendants to prepare plans and a specification for the erection of a workhouse for an union, of which the defendants were guardians, employed the plaintiff, a surveyor, to make out the bills of quantities; and an advertisement for tenders having been prepared, referring the builders desirous of tendering to the office of the defendant's clerk for a view of the plans and specification; and the instructions given to the defendants' clerk to show to the builders, contained an intimation that the quantities were being taken out, and that the expense of taking them out was to be defrayed by the successful competitor. It was proved at the trial to be the custom for the architect to employ a surveyor to make

out the bill of quantities, and for the successful competitior to pay his charge; but a misunderstanding having arisen between the defendants and K., another architect was employed; and when K. sent in his bill, claiming 1137. for the plans and specification, and 651. as "the surveyor's charge for making out the quantities," the defendants paid him 807., which he received in satisfaction of his demand, nothing being said about the surveyor's charges; it was held, that under the custom proved, the architect K. must be considered the defendant's agent in the employment of the surveyor, and consequently that the latter was entitled to sue the defendants for the value of his services, the vant of a successful competitor having been occasioned by their act (q).

It is clear that a promise to a particular effect may be implied in any given case from the circumstance of the parties having invariably on former and similar occasions adopted any particular terms or course of dealing (r). Thus interest may be demanded and allowed as a matter of right, if allowed and paid on prior and similar accounts between the parties (s).

There are instances in which the law raises a promise from the acts of a party, and will not admit of evidence of his intention to commit a tort in disavowal of such tacit promise: for no man can set up and take advantage of his own wrong. Thus, if a party seduce away and harbour an apprentice, the master may sue such party in assumpsit for the work and labour of the apprentice (t). So assumpsit lies to recover the value of goods, as sold to the defendant, if he by fraud induced the plaintiff to sell them to an insolvent person, and afterwards obtained them for his own benefit (u). And upon the same principle seems to be founded the doctrine, that if a husband wrongfully expel his wife

(q) Moon v. Guardians of the Poor of the Witney Union, 5 Scott, 1; 3 Bing. N. C. 814, S. C.

(r) See Bruce v. Hunter, 3 Campb. 467; Denton v. Robie, id. 496; Eaton v. Bell, 5 B. & Ald. 24; Gwyn v. Gobby, 4 Taunt. 346; Newal v. Jones, M. & Malk. 449; Calton v. Bragg, 15 East, 223.

(s) See Index, tit. Interest.

(t) Lightly v. Clouston, 1 Taunt. 112; Foster v. Stewart, 3 M. & Sel. 191. And a tenancy may sometimes be implied against a person who might

be treated as a trespasser at the election of the landowner; as where a tenant holds over after notice to quit or pay an advanced rent; Roberts v. Hayward, 3 Car. & P. 432. See post. As to implied warranties of title, &c. see post.

(u) Hill v. Perrott, 3 Taunt. 274; Abbotts v. Barry, & Moore, 98; Edmeads v. Newman, 1 B. & C. 418; 2 2 D. & R. 568, S. C.; Lucas v. Godwin, 4 Scott, 502; 3 Bing. N. C. 737; when not, Hasloch v. Ferguson, 2 N. & P. 269. See 1 Chit. Pl. 6th ed. 100.

from his roof, and leave her unprovided with necessaries, he is liable, upon an implied promise, to any person who supplies her with them, although the husband gave public notice, or even a special warning to the party, not to furnish the wife with necessaries upon his credit (x). And we may refer to this reasoning many of the cases which we shall hereafter notice, in treating of the action for money paid, and in which it has been held that prior request by the defendant to the plaintiff to pay money for his (the defendant's) use, and a promise of repayment shall be inferred, although in fact no such request or promise was made: the plaintiff having been compelled to make the payment by some wrongful act or omission of the defendant. And we shal have occasion to mention many instances in which it has been held that a party may waive a tort, and maintain an action for money had and received. So where a pauper had his leg accidentally fractured in one parish, and was conveyed to the next house in an adjoining parish, and was confined there and visited by the overseer, and attended by the surgeon who attended the parish poor, with the knowledge of the overseer of the latter parish, it was decided that the surgeon might have assumpsit against such overseer for the expenses of the cure; for there was not any obligation against the parish where the accident happened, to pay these expenses, and the overseers knowing of and not repudiating the surgeon's attendance, was equivalent to a request (y). And upon the same ground of a general, moral, and legal obligation, and non dissent to the plaintiff's acts, it was held by Lord Tenterden, C. J., in Nicholl v. Allen (≈), that if the father of an illegitimate child acknowledge it as his offspring, and know that it is boarded and clothed by the plaintiff, and neither express dissent nor take it away, he is impliedly liable for the expenses.

There are also cases in which the law will imply a promise or contract to pay money, although in its origin the transaction was totally unconnected with contract, and there has been no promise in fact, there being a legal duty to pay the money. Upon this principle, debt lies on the judgment of a court of record in this country (a). And assumpsit lies upon an implied promise to pay

(a) See post, Chap. 2.

(y) Lamb v. Bunce, 4 M. & Sel. 275; see Tomlinson v. Bentall, 5 B. & C. 739; 8 D. & R. 493, S. C.

(z) 3 C. & P. 36; see Hodges v. Hodges, Peake, Add. C. 79.

(a) 3 Bla. C. 160; 1 Chit. Pl. 6th ed. 109.

money due upon judgments obtained in foreign courts unconnected with this country (b); or in this country upon an Irish judgment (c); or a Scotch decree (d); or a Jamaica judgment (e); and even to recover money due on the decree of a colonial court for payment of a balance due on a partnership account (ƒ). But neither assumpsit nor debt can be sustained on the decree of the Court of Chancery for a specific sum of money, founded on equi table considerations only (g), or on the mere interlocutory order of a court of law (h). Though the latter may be ancillary to a binding agreement(i).

We shall presently have occasion to explain that a promise. cannot be implied from a mere moral obligation, not supported by a legal liability (k).

The principle is, that promises in law exist only in the absence of express promises: expressum facit cessare tacitum (1). Therefore a usage of trade cannot be set up in contravention of an express contract: thus, where A. agreed to sell to B. a quantity of prime bacon, which B. weighed and examined, and paid for by a bill at two months; but before the bill became due, gave notice to A. that the bacon did not answer the purpose; it was held that B. could not give in evidence a custom that the buyer was bound to reject the contract, if at all, at the time of examining

(b) Walker v. Witter, Dougl. 1 and 4; Hall v. Obber, 11 East, 118, 124, 125; Douglas v. Forrest, 1 M. & P. 663; 4 Bing. 686, S. C. See Buchanan v. Rucker, 1 Campb. 63; 9 East, 192, S. C. But the judgment is inoperative here, if clearly contrary to natural justice or the law of the country where it was pronounced, Becquet v. M'Carthy, 2 B. & Ad. 951, or founded upon a mistake of the law of the country where the original contract was made, &c., see Novelli v. Rossi, 2 B. & Ad. 757; Chitty, jun. on Bills 1553, S. C. (c) Harris v. Saunders, 4 B. & C. 411; 6 D. & R. 471, S. C.

(d) Douglas v. Forrest, 4 Bing. 686; 1 M. & P. 663, S. C.

(e) 2 Chit. Pl. 6th ed. 109. (f) Henley v. Soper, 8 B. & C. 16; Sadler v. Robins, 1 Campb. 253.

(g) Carpenter v. Thornton, 3 B. & Ald. 52; Henley v. Soper, 8 B. & C. 20, per C. J.

(h) Emerson v. Lashley, 2 H. Bl. 248; Fry v. Malcolm, 4 Taunt. 705; Carpenter v. Thornton, 3 B. & Ald.

56. Quære, if debt can be maintained on award of compensation by a jury made a record of quarter sessions under a local act; Rex v. Nottingham Old Waterworks Company, 1 Nev. & P. 480.

(i) Porter v. Cooper, 1 C. M. & R.

387.

(k) Post, 47.

(1) See per Ashhurst and Buller, Js., in Touissant v. Martinnant, 2 Term R. 104, 105; Cutter v. Powell, 6 T. R. 320; per Lawrence, J., in Cowley v. Dunlop, 7 T. R. 568; Cook v. Jennings, id. $81; per Le Blanc, J., in Buckler v. Buttivant, 4 East, 85; and Morsom v. Kymer, 2 M. & Sel. 316, per Bayley, J., in Grimman v. Legge, 8 B. & C. 326; Read v. Rann, 10 B. & C. 438; per Parke, B., in Bradbury v. Anderton, 1 C. M. & R. 490. Though the word demise implies a covenant for title and quiet enjoyment, such implied covenants are restrained by an express covenant for quiet enjoyment; Line v. Stephenson, 5 Bing. N. C. 183.

the goods (1). And although, in the absence of an express stipulation, an outgoing tenant is impliedly entitled to an allowance for seed and labour, &c., in the last year of his tenancy, the benefit of which he has not derived, and which will be received by the in-coming tenant; that is, if there be a custom in the country to that effect; yet the custom can furnish no right by implication, where the tenant holds upon a lease or contract containing express terms and provisions upon the subject, and which either directly contravene the custom, or fairly evince that the parties must have contemplated that it should have no application to their case (m). As where a tenant held under the terms of an expired lease, by which it was stipulated that the tenants on quitting the farm should not sell or take away any of the manure in the fold, but should leave it to be expended on the land by the landlord or his succeeding tenant. The lease contained no stipulation as to the tenant being entitled to payment for such manure. By the custom of the country, the tenant would have been bound not to sell or take away the manure in the fold, but to leave it to be expended on the land by the landlord or his succeeding tenant, and would have been entitled to be paid for the same. It was held, that, as an express stipulation had been made on the subject, the custom was excluded, and that the tenant was not entitled to be paid for the manure (n). But a custom of the country, by which a tenant is entitled on quitting to receive from the landlord or incoming tenant a reasonable allowance for seeds and labour bestowed on arable land in the last year of the tenancy, and is bound to leave the manure for the landlord if he will purchase it, is not excluded by a stipulation in the lease, under which he holds, that he will consume threefourths of the hay and straw on the farm, and spread the manure arising therefrom, and leave such of it as shall not be so spread on the land for the use of the landlord on receiving a reasonable price for it (o).

The French law, upon the subject of implied promises, is not unworthy of our notice. "Certain engagements are formed without the intervention of any agreement, either on the part of him

(1) Yeats v. Pim, 2 Marsh. R. 141; 6 Taunt. 446, S. C. See Webb v. Plum mer, 2 B. & Ald. 746.

(m) See Index, tit. Custom of the Country.

(n) Roberts v. Barker, 1 C. & M. 808; 3 Tyr. 945, S. C.; post.

(0) Hutton v. Warren, 1 Mees. & W. 466; 1 Tyr. & Gr. 646, S. C.