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II. Hitherto of injuries affecting the right of things personal, in possession. We are next to consider those which regard things in action only : or such rights as are founded on, and arise from, contracts; the nature and several divisions of which were explained in the preceding volume (9). The violation, or non-performance, of these contracts might be extended into as great a variety of wrongs, as the rights which we then considered : but I shall now consider them in a more comprehensive view, by here making only a twofold division of contracts ; viz. contracts express, and contracts implied ; and pointing out the injuries that arise from the violation of each, with their respective remedies.
Express contracts include three distinct species ; debts, covenants, and promises.
*l. The legal acceptation of debt is, a sum of money due by cer- [*154] tain and express agreement : as, by a bond for a determinate sum ; a bill or note; a special bargain; or rent reserved on a lease ; where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it. The non-payment of these is an injury, for which the proper remedy is by action of debt (r), to compel the performance of the contract and recover the specifical sum due (s). This is the shortest and surest remedy; particularly where the debt arises upon a specialty, that is, upon a deed or instrument under seal. So also, if I verbally agree to pay a man a certain price for a certain parcel of goods, and fail in the performance, an action of debt lies against me ; for this is also a determinate contract : but if I agree for no settled price, I am not lia
a ble to an action of debt, but a special action on the case, according to the nature of my contract. And indeed actions of debt are now seldom brought but upon special contracts under seal; wherein the sum due is clearly and precisely expressed : for, in case of such an action upon a simple contract, the plaintiff labours under two difficulties. First, the defendant has here the same advantage as in an action of detinue, that of waging his law, or purging himself of the debt by oath, if he thinks proper (t); Secondly, in an action of debt the plaintiff must prove the whole debt he claims, or recover nothing at all. For the debt is one single cause of action, fixed and determined ; and which therefore, if the proof varies from the claim, cannot be looked upon as the same contract whereof the performance is sued for. If therefore I bring an action of debt for 301., I am not at liberty to prove a debt of 201. and recover a verdict thereon (u); any more than if I bring an action of detinue for a horse, I can thereby recover an ox. For I fail in the proof of that contract, which my action or complaint has alleged to be specific, express, and determinate (14). But in an action on the case, (9) See book II. ch. 30.
(1) 4 Rep. 94.
(u) Bro. Ley gager. 93. Dyer, 219. 2 Roll. Abr. (5) See Appendix, No. III. 9 1. ses, and any one incautiously, or not knowing 304. of it, should go so near as to be injured by it, (14) This is no longer the case, for it is no no action can be maintained by the person in- completely settled, that the plaintiff in an ac. jured, though he was seeking the owner, with tion of debt may prove and recover less than whom he had business. Bates v. Crosbie, M. the sum demanded in the writ. See Bla. R. T. 1798, in the king's bench. If a man sets 1221. 1 Hen. Bla. 249. 11 East, 62. The traps in his own grounds, but baited with such judgment being final in the first instance, (sustrong-scented articles as allure the neighbour. ing a writ of injury and wager of law having ing dogs from the premises of the owners, or become almost obsolete), renders debt on simfrom the highways, the owner of a dog injured ple contract, as well as specialty, a favourite may maintain an action upon the case. 9 East, form of action, and is of daily occurrence. See 227; but see llot v. Wilkes, 3 Bar. & Ald. 398. and notes, post. VOL. II.
(ry F. N. B. 119.
1 Show. 215.
on what is called an indebitatus assumpsit, which is not brought to compel a
specific performance of the contract, but to recover damages for [*155] its *non-performance, the implied assumpsit
, and consequently the damages for the breach of it, are in their nature indeterminate ; and will therefore adapt and proportion themselves to the truth of the case which shall be proved, without being confined to the precise demand stated in the declaration. For if any debt be proved, however less than the sum demanded, the law will raise a promise pro tanto, and the damages will of course be proportioned to the actual debt. So that I may declare that the defendant, being indebted to me in 301. undertook or promised to pay it, but failed ; and lay my damages arising from such failure at what sum I please : and the jury will, according to the nature of my proof, allow me either the whole in damages, or any inferior sum. And, even in actions of debt, where the contract is proved or admitted, if the defendant can shew that he has discharged any part of it, the plaintiff shall recover the re
The form of the writ of debt is sometimes in the debet and detinet, and sometimes in the detinet only : that is, the writ states, either that the defendant owes and unjustly detains the debt or thing in question, or only that he unjustly detains it. It is brought in the debet as well as detinet, when sued by one of the original contracting parties who personally gave the credit, against the other who personally incurred the debt, or against his heirs, if they are bound to the payment; as by the obligee against the obligor, the landlord against the tenant, fc. But, if it be brought by or against an executor for a debt due to or from the testator, this not being his own debt, shall be sued for in the detinet only (w). So also if the action be for goods, or corn, or a horse, the writ shall be in the detinet only; for nothing but a sum of money, for which I (or my ancestors in my name) have personally contracted, is properly considered as my debt. And indeed a writ of debt in the detinet only, for goods and chattels, is neither more nor less than a mere writ of detinuie (15); and is followed by the very same judgment (w).
2. A covenant also, contained in a deed, to do a direct act or to omit one, is another species of express contracts, the violation or breach of which is
a civil injury. As if a man covenants to be at York by such a [*156] day, or not to exercise *trade in a particular place, and is not at
York at the time appointed, or carries on his trade in the place forbidden, these are direct breaches of his covenant; and may be perhaps greatly to the disadvantage and loss of the covenantee. The remedy for this is by a writ of covenant (y): which directs the sheriff to command the defendant generally to keep his covenant with the plaintiff, (without specifying the nature of the covenant), or shew good cause to the contrary: and if he continues refractory, or the covenant is already so broken that it cannot now be specifically performed, then the subsequent proceedings set forth with precision the covenant, the breach, and the loss which has happened thereby; whereupon the jury will give damages, in proportion to the injury sustained by the plaintiff, and occasioned by such breach of the defendant's contract.
There is one species of covenant, of a different nature from the rest ; and
(y) F. N. B. 145.
(r) Rast. Entr. 174.
that is a covenant real, to convey or dispose of lands, which seems to be partly of a personal and partly of the real nature (+). For this the remedy is by a special writ of covenant, for a specific performance of the contract concerning certain lands particularly described in the writ. It therefore directs the sheriff to command the defendant, here called the desorciant, to keep the covenant made between the plaintiff and himn concerning the identical lands in question : and upon this process it is that fines of land are usually levied at common law (a),15the plaintiff, or person to whom the fine is levied, bringing a writ of covenant, in which he suggests some agreement to have been made between him and the deforciant, touching those particular lands, for the complexion of which he brings this action. And, for the end of this supposed difference, the fine or finalis concordia is made, whereby the deforciant (now called the cognizor) acknowledges the tenements to be the right of the plaintiff, now called the cognizee (16). And moreover, as leases for years were formerly considered only as contracts (b) or covenants for the enjoyment of the rents and profits, and not as the conveyance *of any real interest in the land, the [*157] ancient remedy for the lessee, if ejected, was by a writ of covenant against the lessor, to recover the term (if in being) and damages, in case the ouster was committed by the lessor himself: or if the term was expired, or the guster was committed by a stranger, claiming by an elder title, then to recover damages only (c).
No person could at common law take advantage of any covenant or condition, except such as were parties or privies thereto; and, of course, no grantee or assignee of any reversion or rent. To remedy which, and more effectually to secure to the king's grantees the spoils of the monasteries then newly dissolved, the statute 32 Hen. VIII. c. 34. gives the assignee of a reversion (after notice of such assignment) (d) the same remedies against the particular tenant, by entry or action, for waste or other forfeitures, non-payment of rent, and non-performance of conditions, covenants, and agreements, as the assignor himself might have had ; and makes him equally liable, on the other hand, for acts agreed to be performed by the assignor, except in the case of warranty (17).
3. A promise is in the nature of a verbal covenant, and wants nothing but the solemnity of writing and sealing to make it absolutely the same. If therefore it be to do any explicit act, it is an express contract, as much as any covenant; and the breach of it is an equal injury. The remedy indeed is not exactly the same : since, instead of an action of covenant, there only lies an action upon the case, for what is called the assumpsit or undertaking of the defendant; the failure of performing which is the wrong or injury done to the plaintiff
, the damages whereof a jury are to estimate and settle. And if a builder promises, undertakes, or assumes to Caius, that he will build and cover his house within a time limited, and fails to do it; Caius has an action on the case against the builder, for this breach of his express promise, undertaking, or assumpsit ; and shall recover a pecuniary satisfaction for the injury sustained by such delay (18). () Hob. on F. N. B. 146
(c) Bro. Abr. t. covenant, 33. F. N. B. 476. (a) See book II. ch. 21.
(d) Co. Litt. 215. Moor. 876. Cro. Jac. 145. (0) See book II. ch. 9. (16) Fines are now abolished in New-York. described, or even alluded to the considera. (2 R.S. 343, $ 24.)
tion requisite to support an assumpsit ; and 17) See 1 R. 8.747, § 23, 24.
what is more remarkable, the example put by 18). "!t is worthy of remark, that the him in the text in order to illustrate the nalearned Commentator has not either named. ture of the action, is, in the terms in which it
(15) See Hov. 8. (15) at the end of the Vol. B. IIL.
So also in the case before mentioned, of a debt by simple contract, if the debtor promises to pay it and does not, this breach of promise entitles the creditor to his action on the case, instead of being driven to an action of debt (e). Thus likewise a promissory note, or note of hand not under
seal, to pay money at a day certain, is an express assumpsit ; and the · payee at common law, or by custom and act of parliament the indor
see (S), may recover the value of the note in damages, if it remains unpaid. Some agreements indeed, though never so expressly made, are deemed of so important a nature, that they ought not to rest in verbal promise only, which cannot be proved but by the memory (which sometimes will'induce the perjury) of witnesses. To prevent which, the sta
tute of frauds and perjuries, 29 Car. II. c. 3. enacts, that in the [*158] five *following cases no verbal promise shall be sufficient to ground
an action upon, but at the least some note or memorandum of it shall be made in writing, and signed by the party to be charged therewith: 1. Where an executor or administrator promises to answer damages out of his own estate. 2. Where a man undertakes to answer for the debt, default, or miscarriage of another. 3. Where any agreement is made, upon consideration of marriage. 4. Where any contract or sale is made of lands, tenements, or hereditaments, or any interest therein. 5. And lastly, where there is any agreement that is not to be performed within a year from the making thereof. In all these cases a mere verbal assumpsit is void (19), (20). (e) 4 Rep. 99.
(f) See book II. ch. 30. is there stated, a case of nudum pactum. See writing, otherwise it is void. 2 T. R. 80. 1 Roll. Ab. 9. 1. 41 Doct. & Siud. 2. ch. 24. H. Bl. Rep. 120. 1 Bos. & Pul. 158. Muand 5 T. R. 143. that the promise will not lie tual promises to marry need not be in writing; for a mere nonseаsance, unless the promise is the statute relates only to agreements made founded on a consideration. This remark in consideration of the marriage. ought not, neither was it intended, to derogate exceeding three years from the making therefrom the merit of a justly celebrated writer, of, and in which the rent reserved amounts to who, for comprehensive design, luminous ar- two-thirds of the improved value, is good rangement, and elegance of diction, is upri- without writing; but all other parol leases or valled." Selw. N. P. 45.
agreements for any interest in lands, have the (19) These provisions in the statute have effect of estates at will only. Bul), N. P. produced many decisions, both in the courts 279. All declarations of trusts, except such of law and equity. See 3 Chitty's Com. L. as result by implication of law, must be made per tot. It is now settled, that if two persons in writing. 29 Car. II. c. 3. s. 7 & 8. If a go to a shop, and one order goods, and the promise depends upon a contingency, which other say, "if he does not pay I will,” or “I may or may not fall within a year, it is not will see you paid," he is not bound unless his within the statute; as a promise to pay a sum engagement is reduced into writing. In all of money upon a death or marriage, or upon such cases the question is, who is the buyer, the return of a ship, or to leave a legacy by or to whom the credit is given, and who is the will, is good by parol; for such a promise may surety : and that question, from all the cir- by possibility be performed within the year. cumstances, must be ascertained by the jury: 3 Burr. 1278. i Salk. 280. 3 Salk. 9, &c. for if the person for whose use the goods are Partial performance within the year, where furnished be liable at all, any promise by a the original understanding is, that the whole third person to discharge the debt must be in is to extend to a longer period, does not take
(20) In the text is omitted a part of the act uses the word “signed" where ours uses which allows other circumstances to dispense “subscribed."-In other respects they are with writing in the case of personal goods, alike. Ours was probably intended as a repeal viz. if the buyer accept and receive part of of the decisions construing a memorandum the goods; or the evidences, or some of them, with a man's name written on it, a signature, of things in action : or if he, at the time, pay though not written at the foot of the memosome part of the purchase money. (2 R. S. randum. 135, 0 3.) The Revised Statutes of New. Leases, or contracts for leases, for a longer York expressly require the memorandum to period than one year in New York, must be in be subscribed by the parties to be charged, or writing. (Id. 134, 66: 135, 6 8.) their agent : see also id. 135, 8, as to con- See as to executors, 2 R. S. 113,0 1. tracts for the sale of lands. The English act
A lease not
From 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 therefore the law presumes that every man has contracted to perform ; and upon
this presumption makes him answerable to such persons as suffer by his non-performance. Of this nature are, first, such as are necess
essarily implied by the fundamental constitution of government, to which every man is a contracting party. And thus it is that every person 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 a 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 that state, of which each individual is a member. Whatever therefore the laws order any one to pay, that becomes instantly a debt, which he hath before-hand contracted to discharge. And this implied agreement 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 a judgment against another for a certain sum, and neglects to take out execution *thereupon, he [*159] may afterwards bring an action of debt upon this judgment ( g),16 and shall not be put upon the proof of the original cause of action ; but upon shewing the judgment once obtained, still in full force, and yet unsatisfied, the law immediately implies, that by the original contract of society the defendant hath contracted a debt, and is bound to pay it. This method seems to have been invented, when real actions were more in use than at present, and damages were permitted to be recovered thereon; in order to have the benefit of a writ of capias to take the defendant's 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 upon judgment in personal suits have been pretty much discountenanced by the courts, as being generally vexatious and oppressive, by harassing the defendant with the costs of 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 by-laws and private ordinances of a corporation upon
(g) Roll. Abr. 600, 601. the case out of the statute. 11 East, 142. can be no fraud or perjury in obtaining the exBut even a written undertaking to pay the ecution of it. 3 Ves. Jun. 39. 378. & 712, debt of another is void, unless a good consi- But lord Eldon seems to think that a specific deration appears in the writing: and the con- performance cannot be decreed, if the defendsideration, if any, cannot be proved by parol ant in his answer admits a parol agreement, evidence. 5 East, 10. If a growing crop is and at the same time insists upon the benefit purchased without writing; the agreement, of the statute.
6 Ves. Jun. 37. If one party before part execution, may be put an end to by only signs an agreement, he is bound by it; parol notice. 6 East, 602. But a court of equity and is an agreement is by parol, but it is will decree a specific performance of a verbal agreed it shall be reduced into writing, and contract, when it is confessed by a defendant this is prevented by the fraud of one of the in his answer; or when there has been a part parties, performance of it will be decreed. ? performance of it; as by payment of pari of Bro. 564, 5, 6. See 3 Woodd. Lect. lvii. and the consideration money, or by entering and Fonblanque Tr. of Eq. b. 1. c. 3. s. 8 & 9. expending money upon the estate, for such where this subject is fully and learnedly disacis preclude the party from denying the ex. cussed. istence of the contract, and prove that there
(16) See Hov. n. (16) at the end of the Vol. B. III.