ASSUMPSIT - An undertaking either express or implied, to perform a parole agreement.
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 pa a sum of money to another.
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 abide 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 assent to what is useful to him. See Assent
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 parole or simple contract; or, in other words, a contract not under seal, nor of record; circumstances which distinguish this remedy from others. 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. If differs from covenant, which, though brought for the recovery of damages, can only be supported upon a contract under seal.
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 judgment.
Assumpsit lies to recover damages for the breach of all parol or simple contracts, whether written or not written express or implied; for the payment of money, or for the performance or omission 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 defendant, in consequence of some tortious act to the plaintiff's property, the plaintiff may waive the tort, and sue the defendant in assumpsit. It is the proper remedy for work and labor done, and services rendered but such work, labor, or services, must be rendered at the request, express or implied, of the defendant for goods sold and delivered; for a breach of promise of marriage.
Assumpsit lies to recover the purchase money for land sold; and it lies, specially, upon wagers; upon foreign judgments; But it will not lie on a judgment obtained in a sister state. Assumpsit is the proper remedy upon an account stated. It will lie for a corporation. In England it does not lie against a corporation, unless by express authority of some legislative act but in this country it lies against a corporation aggregate, on an express or implied promise, in the same manner as against an individual.
The declaration must invariably disclose the consideration of the contract, the contract itself, and the breach of it; but in a declaration on a negotiable instrument under the statute of Anne, it is not requisite to, allege any consideration; and on a note expressed to have been given for value received, it is not necessary to aver a special consideration. The gist of this action is the promise, and it must be averred. Damages should be laid in a sufficient amount to cover the real amount of the claim.
The usual plea is non-assumpsit under which the defendant may give in evidence most matters of defense. When there are several defendants they cannot plead the general issue severally; nor the same plea in bar, severally. The plea of not guilty, in an action of assumpsit, is cured by verdict.
From: John Bouvier, Revised Sixth Edition, 1856
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 covenant, which, though brought for the recovery of damages, can only be supported upon a contract under seal. See Covenant.
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 judgment.
3. –
1. Assumpsit lies to recover damages for the breach of all parol or simple
contracts, whether written or not written express or implied; for the
payment of money, or for the performance or omission 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
defendant, in consequence of some tortious act to the plaintiff's property,
the plaintiff may waive the tort, and sue the defendant in assumpsit. 5
Pick. 285; 1 J. J. Marsh. 543 3 Watts, 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 labor 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. Cons. Ct. 848; 1 M'Cord, 22; 20 John. 28 11
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 statute
of Anne, it is not requisite to, allege any consideration; 2 Leigh, R. 198;
and on a note expressed to have been given for value received, it is not
necessary to aver a special consideration. 7 Johns. 321. See
Mass.
97. The gist of this action is the promise, and it must be averred. 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;
5. – 3. The usual plea is non-assumpsit, (q. v.) under which the defendant may give in evidence most matters of defense. Com. Dig. Pleader, 2 G 1. When there are several defendants 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; Minor, 254 Bouv. Inst. Index, h. t.
6. – 4. Judgment. Void 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.
Tacit
Pronunciation: 'ta-sit, Function: adjective,
1 : expressed or carried on without words or speech
2 : implied or indicated (as by an act or by silence) but not actually expressed,
<tacit consent>< tacit admission of guilt>
- tac·it·ly adverb
- tac·it·ness noun
Procuration
1. Procuration civil law. The act by which one person gives power to another to act in his place, as he could do himself. A letter of attorney.
2. Procurations are either express or implied; an express procuration is one made by the express consent of the parties; the implied or tacit takes place when an individual sees another managing his affairs, and does not interfere to prevent it. Dig. 17, 1, 6, 2; Id. 50, 17, 60; Code 7, 32, 2.
3. Procurations are also divided into those which contain absolute power, or a general authority, and those which give only a limited power. Dig. 3, 3, 58; Id. 17, 1, 60, 4
4. The procurations are ended in three ways first, by the revocation of the authority; secondly, by the death of one of the parties; thirdly, by the renunciation of the mandatory, when it is made in proper time and place, and it can be done without injury to the person who gave it. Inst. 3, 27 Dig. 17, 1; Code 4, 35; and see Authority; Letter of Attorney; Mandate.
5. Procurations are also divided into those which contain absolute power, or a general authority, and those which give only a limited power. Dig. 3, 3, 58; Id. 17, 1, 60, 4 4. The procurations are ended in three ways first, by the revocation of the authority; secondly, by the death of one of the parties; thirdly, by the renunciation of the mandatory, when it is made in proper time and place, and it can be done without injury to the person who gave it. Inst. 3, 27 Dig. 17, 1; Code 4, 35; and see Authority; Letter of Attorney; Mandate.
Procurations, eccles. law. Certain sums of money which parish priests pay yearly to the bishops or archdeacons ratione visitationis. it 3, 39, 25; Ayl. Parerg. 429; 17 Vin. Ab. h. t., pa e 544.
Procurator, civil law. A proctor; a person who acts for another by virtue of a procuration. Procurator est, qui aliena negotia mandata Domini administrat. Dig 3, 3, 1. Vide Attorney; Authority.
Procurator in rem suam. Scotch law. This imports that one is acting as attorney as to his own property. When an assignment of a thing is made, as a debt, and a procuration or power of attorney is given to the assignee to receive the same, he is in such case procurator in rein suam. 3 Stair's Inst. 1, 2, 3, &c.; 3 Ersk. 5, 2; 1 Bell's Com. B. 5, c. 2, s. 1, 2.
Proc`u`ra´tion
1) The act of procuring; procurement.
2) The management of another's affairs.
3) The instrument by which a person is empowered to transact the affairs of another; a proxy.
Not subject to legal constraint of another. Unconstrained; having power to follow the dictates of his own will. Not subject to the dominion of another. Not compelled to involuntary servitude. Used in this sense as opposed to "slave." Confined to the person possessing, instead of being shared with others. Not engaged in a war as belligerent or ally; neutral; Black's Law 4th edition.
Not despotic; assuring liberty; defending individual rights against encroachment by any person or class; instituted by a free people; said of governments, institutions, etc. Webster
independent: Not dependent; not subject to control, restriction, modification, or limitation from a given outside source
We come now to the legal definition of procuration: Agency; proxy; the act of constituting another one's attorney in fact. The act by which one person gives power to another to act in his place, as he could himself. Action under a power of attorney or other constitution of agency. An express procuration is one made by the express [written] consent of the parties. An implied or tacit procuration takes place when an individual sees another managing his affairs and does not interfere to prevent it. Procurations are also divided into those which contain absolute power, or a general authority, and those which give only limited power. Black's Law 4th edition.
pro·cliv·i·ty n. pl. pro·cliv·i·ties, A natural propensity or inclination; predisposition.
Collateral Attack: When a separate and
new lawsuit is filed to challenge some aspect of an earlier and separate case,
it is called a collateral attack on the earlier case. This is different than an
appeal, which is a challenge to some aspect of a decision made in the same case.
Example: Sam obtains a divorce in Nevada without properly notifying his wife, Laurie. Laurie files a later lawsuit seeking to set aside the divorce and start the divorce proceedings over. Laurie's case is a collateral attack on the divorce.
The law wants judgments to be final whenever possible, and thus collateral attacks are discouraged. Many are filed, but usually only succeed when an obvious injustice or unconstitutional treatment occurred in the earlier case.
Subject-Matter Jurisdiction
Subject matter is the cause, the object, the thing in dispute.
The authority of a court to decide a particular type of case is called subject- matter jurisdiction and is set by the federal or state Constitution, or by state statutes.
In order for a court to have subject-matter jurisdiction over a divorce action, at least one spouse must have lived in the county where the court is located for a certain period of time. Some states also require the spouse to have lived within the state for a certain length of time, usually a few months longer than the time in the county. For example, to obtain a divorce in California, a person must have lived in California for at least six months, and in the particular county in which he wants to obtain the divorce for at least three months. In Illinois, a person must have lived in the state for ninety days, in New York and New Jersey, the requirement is one year. In Texas, a person must have lived in the state for six months and in the particular county in which she wants to obtain the divorce for at least ninety days.
It is a fatal objection to the jurisdiction of the court when it has not cognizance of the subject-matter of the action; as, if a cause exclusively of admiralty jurisdiction were brought in a court of common law, or a criminal proceeding in a court having jurisdiction of civil cases only. In such case, neither a plea to the jurisdiction, nor any other plea would be required to oust the court of jurisdiction. The cause might be dismissed upon motion, by the court, ex officio.
Mandamus - (man-dame-us) n. Latin for "we order," a writ (more modernly called a "writ of mandate") which orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so. Examples: After petitions were filed with sufficient valid signatures to qualify a proposition for the ballot, the city refuses to call the election, claiming it has a legal opinion that the proposal is unconstitutional. The backers of the proposition file a petition for a writ ordering the city to hold the election. The court will order a hearing on the writ and afterwards either issue the writ or deny the petition. Or a state agency refuses to release public information, a school district charges fees to a student in violation of state law, or a judge will not permit reporters entry at a public trial. All of these can be subject of petitions for a writ of mandamus.
Vacate v. 1) for a judge to set aside or annul an order or judgment which he/she finds was improper.
egregious, adjective: Conspicuously and outrageously bad or reprehensible.
cog·ni·za·ble Knowable or perceivable. Law. Able to be tried before a particular court.
Tacit Procuration
If you allow others to handle your affairs, you give them a power of attorney. As I explained earlier, you grant the power of attorney by getting a number. Proof: they can seize your property without a court order, without proof of a violation, without a judge's signature, and without even starting any court proceedings.
Go to any library and look up "Procuration" in a Law Dictionary, pay special attention to "tacit procuration": "An implied or tacit procuration takes place when an individual sees another managing his affairs and does not interfere to prevent it."
By doing nothing, you grant the power of attorney if you see the government handling any of your affairs and you do not interfere to prevent it. As I explained earlier the poor laws were written to take care of "those who are destitute and helpless ..."
Even acceptance of their control over prescription drugs is proof that you do not manage your own affairs. You, by your action of accepting their management of your affairs, agree that you are incompetent to manage yourself.
Perhaps you even grant the power of attorney by accepting Federal Reserve Notes when they are required to pay (tender in payment of debts) Gold coin per Constitution Article 1, Section 10. A classic book on this topic is The Miracle on Main Street by F. Tupper Saussy ISBN: 0-911805-00-1
Even without a signature or an oath, your actions can grant the power of attorney and alter your citizenship. By accepting the benefits of statutory citizenship, you become a statutory citizen. Examples: accepting statutory deeds, accepting usury or voting for bond issues, voting for president unless you are in the Electoral College, confessing that you reside within a Federal zip code, declaring bankruptcy, or using the Freedom of Information Act, or many other Statutes. This is because Persons and Corporations get their rights from Congress, whereas Sovereigns get their rights from God.
Zip Codes are optional as far as the Post Office is concerned (see Domestic
Mail Policy DMM122.32), yet Social Security cards will not be issued unless
the application form has a zip code address (you will get SSA Denial Notice,
Form SSA-L676, stating that they cannot mail a Social Security Card to an
address that doesn't have a zip code - they can mail the denial but they cannot
mail the card??). They cannot force you into a federal jurisdiction, which would
be the crime of kidnapping. Not even one created by the Buck Act. You
must voluntarily confess that you are a resident in your federal government,
with a federal address, otherwise their laws do not apply to you and they can
not send you an SS card. Draft registration is another example. In
You have no rights to accept or charge interest. Interest is a government granted privilege that is granted contrary to Biblical principles. The borrower is a slave to the lender (Proverbs 22:7). One percent interest is usury (Nehemiah 5:10-11). A Bible believer will never accept usury (Psalms 15:5, Ezekiel 18:13) or charge usury (Deut 23:19-20, Ex 22:25). In your own country, up until 1694, accepting or paying interest was a punishable crime. Government incorporated banks can give usury. In order to do this they need an SSN so that they can tax this government granted privilege. You can still get a non-interest checking account without a number. By the way, Private banks can pay interest too, but they must pay a 10% tax for this government granted privilege. There are no private banks left.
Note: The very same unchanging Jesus Christ who said that not one jot nor tittle shall fall from the law also told the parable of the ten talents in which a master used sarcasm to rebuke an unprofitable servant. Luke 19:23. Sarcasm does not authorize usury. He was saying (my paraphrase): "So you think I'm a hardened criminal who reaps what he doesn't sow, why then didn't you go all the way and commit the crime of usury by depositing my money in a bank."
In the 1935 Supreme Court case of Perry v. U.S. (294
The US Supreme Court ruled in a 1913 case, German Alliance Insurance Co. v. Kansas 233 US 389 at page 432. That "Moreover, interest laws were in their inception not a restriction upon the right of contract but an enlargement, permitting what theretofore had been regarded both as an ecclesiastical and civil offense. ... they therefore fall within the rule that contemporary practice, if subsequently continued and universally acquiesced in, amounts to an interpretation of the Constitution."
How do you like that? By turning our backs to an unchanging God (Malachi 3:6, Hebrews 13:8, Hebrews 6:17-18, Numbers 23:19, 1st Samuel 15:29, Titus 1:2) we've let criminals, (theretofore regarded as a crime), now unpunishable, interpret our Constitution for us.
The Supreme Court had to rule this way because they don't interpret your Constitution. They are just servants. Their masters (we the people) determine the law. If the people are Christian, we will have Christian law, if the people are worldly, we will accept evil law. Which law do you accept?
You should have known, as did Abe Lincoln in his first inaugural address, that: "If the policy of the government ... is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers." Back then, you could be your own rulers. Just try to assert your rulership now, and see what happens.
For More information or to contact a Judgment Defense Specialist CLICK HERE