
    Tyler vers. Richards, Administrator.
    
      Indebitatus Assumpit for Boarding and Schooling Defendant's Son, is not supported by Proof of a Promise “ to pay honourably.”
    
      INDEBITATUS ASSUMPSIT, for Boarding and Schooling Intestate’s Son. Proof that the Intestate promised to pay honourably.
    
    
      Mr. Auchmuty.
    
    This Action will not lye; they ought to have brought a Quantum Meruit. Law of Evid. 190.
    
      Messrs. S. Quincy & Adams.
    
    It has always been the Custom of this Court, to allow an Indebitatus Assumpsit to lye, if the Services alledged were proved to have been done. As every Man is supposed to assume to pay the customary Price. Assumpsit is always brought for Work done by Tradesmen, and is always allowed. The Price for Boarding and Schooling is as much settled in the Country, as it is in the Town for a Yard of Cloth, or a Day’s Work by a Carpenter.
    1765.
    
      Mr. Auchmuty.
    
    It is high Time some Rule was settled by this Court in Relation to these Actions; For if a Quantum Meruit is not necessary here, ’tis necessary in no Cafe. The Practice has always been varying, the Court sometimes denying, and sometimes allowing such Proof, to support these Actions. But had Indebitatus Assumpsit been brought for a Yard of Cloth, and the Evidence had been a Promise to pay honourably, I’m sure ’twould have defeated the Action. My Lord Gilbert says, “ Courts must go according to the Allegata et Probata.” Now, what is alledged here? That my Client promised to pay absolutely so much. What is the Proof? That he promised to pay honourably. If this Proof is admitted, there will be an End of any Distinction between Indebitatus Assumpsit and a Quantum meruit.
    
   The whole Court,

absente Russell,

were unanimous that this Evidence would not support the Declaration; on which the Plaintiffs discontinued, paying Costs. 
      
      
        Sed vid. the caufe of Pyncheon vs. Brewster, post.
     