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*1. The legal acceptation of debt is, a sum of money due by certain and express agreement: as, by a bond for a determinate sum; a bill or note; a special bargain; or a 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 liable 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. (10) But in an action on the case, on what is called an indebitatus assumpsit which is not brought to compel a specific performance of the contract, but to recover damages for its *non-performance, the implied assumpsit, and consequently the damages for the breach of it, are in their nature [* 155] 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 show that he has discharged any part of it, the plaintiff shall recover the residue. (v)
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, &c. But, if it be brought by or against an executor for 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, for corn, or a horse, the writ shall be in the detinet only; for nothing but a sum of money, for which I (or my
(r) F. N. B. 119.
(u) Bro. Ley gager, 93
(v) 1 Roll. Rep. 257.
(8) See Appendix, No. III, § 1.
(10) [This is no longer the case, for it is now completely settled, that the plaintiff in an action of debt may prove and recover less than the sum demanded in the writ. See Bla. R. 1221: 1 Hen Bla 249; 11 East, 62.]
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 detinue; and is followed by the very same judgment. (x)
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 day, or not to exercise [*156] a *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. (11) 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 show 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 that is a covenant real, to convey or dispose of lands, which seems to be partly of a personal and partly of a real nature. (2) 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 deforciant, to keep the covenant made between the plaintiff and him concerning the identical lands in question; and upon this process it is that fines of land are usually levied at common law, (a) the 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 completion 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 cognizor) acknowledges the tenements to be the right of the plaintiff, now called the cognizee. And moreover, as leases for years were formerly considered only as contracts (b) or covenants for the enjoyment of rents and profits, and not as [*157] the conveyance *of any real interest in the land, the 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
(x) Rast. Entr. 174.
(y) F. N. B. 145.
(z) Hal. on F. N. B. 146.
(11) [By an express covenant a man is bound to perform what he covenants at all events. Thus, where in a lease there is an express unqualified covenant on the part of the tenant to pay rent, he is obliged to pay it during the terin, although the house be burned down and ho do not enjoy the use of it. Shudbrick v. Salmond, 3 Burr. 1637; Belfour v. Weston, 1 T. R. 310. This is certainly a great hardship to lessees, where they are not by the provisions of their leases obliged to rebuild; and in such cases we accordingly find that recourse has been had to a court of equity to obtain an injunction against the lessor proceeding at law for the recov ery of the rent; which has generally been granted on condition of the lessee surrendering the lease. Cambden v. Morton, in Canc. E., 4 Geo. III, MS.; Selw. N. P. 472; Brown v. Quilter, Amb. 619.
The covenantor is also answerable for even the act of God, as damage by lightning, &c., if he have not excepted it in his covenant. Brecknock and Abergavenny Canal Navigation v. Pritchard, 6 T. R. 750.
It may not be unnecessary to point out a distinction between covenants in general and those secured by a penalty or forfeiture. In the latter case the obligee has his election either to bring an action of debt for the penalty or to proceed upon the covenant and recover in damages more or less than the penalty, totics quoties; but he cannot have recourse to both Lowe v. Peers, 4 Burr. 2228. See further on covenants, in Harg. and Butler's notes on Co. Litt.]
by the lessor himself: or if the term was expired, or the ouster was committed by a stranger, claiming by an elder title, then to recover damages only. (c) (12) 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'grantce
(c) Bro. Abr. t. covenant, 33. F. N. B. 145.
(12) [The importance of the subject of the above paragraph requires that it should be more fully noticed. With respect to the parties who may sue on a covenant: First, the covenantec may sue the covenantor upon all lawful covenants, either expressed in the deed or implied by law; upon the former in respect of the privity of contract created by the deed, and upon the latter, in respect of the privity of estate in the thing in respect of which the law creates the Bacheloure v. Gage, Sir W. Jones, 23; Anon., 1 Sid. 447; Auriol v. Mills, 4 T.
For a personal thing the law does not create a covenant, and implied covenants are therefore confined t› real property. Com. Dig. Covenant A. 4.
The covenantee must be a party to the deed by which the covenant is created. Thus if a deed, purporting to be made between two or more parties, contain a covenant expressed to be for the benefit of one not a party to it, and to be made with him, yet not he, but the party to the deed, is the covenantee, and must sue upon it. Per Tindal, C. J., in Bushell v. Beavan, 1 Bing. N. C. 120; Berkley v. Hardy, 5 B. and C. 355. And it is the same in covenants created by deeds-poll, in which cases the person with whom a covenant is made becomes in fact a partv to the deed. Com. Dig., Fait, D. 1.
Secondly, in what cases the heir of the covenantee may sue. These are upon such covenants as are quodammodo annexed or appurtenant to the land or other hereditament which has de scended to him, or, as it is usually expressed, which run with the land, and a privity of contract is transferred from the covenantor to the heir in respect of the estate descended. The expression running with the estate in the land is more correct than running with the land. Webb v. Russel, 3 T. R. 393. For instance, the heir of a lessor, though not named, may sue for the breach of a covenant to repair premises which have come to him as such. Lougher v. Williams, 2 Lev. 92; Glover v. Cope, Skin. 305.
Thirdly, when an executor may sue upon a covenant. Upon all covenants not running with the land, and of which the heir cannot take advantage, the executor of the covenantee must sue. 2 H. Bl. 310; 3 T. R. 393, 401; Com. Dig. Covenant 1. The heir cannot take advantage of covenants annexed to a term of years; for that does not descend to him, but passes to the executor. And with respect to covenants annexed to the inheritance, if there has been a breach of them in the lifetime of the testator, occasioning damages to his personal estate, the executor is the proper party to sue. 2 Lev. 26; 1 M. and S. 355; 1 Marsh. 107; 5 Taunt. 418; 4 M. and S. 53, 188.
Fourthly, the devisee of a reversion, and the legatee of a term, stand in the situation, the one of an heir, the other of an assignee. Roe v. Hayley, 12 East, 464.
Fifthly, when the grantee or assignee may sue, of which there are two kinds, the grantee or assignee of the reversion, and the assignee of the term. And first, as to the grantee or assignee of the reversion. It seems that even at common law, the grantee of a reversion might take advantage of a covenant in law, and the words in the text must not be taken to refer to such covenants. Harper v. Burgh, 2 Lev. 205; Vyan v. Arthur, 1 B. and C. 415, per Bailey, J. But upon expressed covenants, although annexed to the estate, and for its benelit, the better opinion is, that the assignee of the reversion could not sue at common law. Thursby v. Plant, 1 W. Saund. 240, n. 3. His rights, in this respect, therefore, depend entirely upon the 32 Hen. VIII, c. 34. Although the words of that statute are sufficiently general to include every covenant upon which the lessor or grantor could sue, it was resolved in Spencer's Case, 5 Coke, 16, and 1 Smith's Leading Cases, 22, that it extends only to covenants which touch or concern the thing demised, and not to collateral covenants. The reason for this seems to have been, that as the remedy by entry (Co. Litt. 215, b.) is confined to forfeitures by force of such conditions as either are incident to the reversion, or for the benefit of the estate, the remedy by action should be confined in like manner. And, indeed, if this construction had not been adopted, he who came to the reversion by grant, or assignment, would have been in a better position than ho who came to it by descent. The effect of the statute is to put the assignee of the reversion in the same situation, and to give him the same remedy, as the heir had at common law. lt creates a privity of contract in respect of the estate which the assignee hath, and not merely a privity of estate. Webb v. Russell, 3 T. R. 393. And, therefore, an action founded upon the statute is transitory. Thursby v. Plant, 1 Saund. 237. According to the preamble, it extends only to reversions upon estates for life or years. Co. Litt. 215, a.; Matures e. Westwood, Cro. Eliz. 617. And copyhold lands are within it. Glover v. Cope, 3 Lev. 327. As to who is a grantee or assignee within its meaning, it has been held that a grantee of part of the reversion (as if the reversion be granted for a term of years), is such: Attoe v. Hemings, 2 Bulstr. 281; Burton v. Barclay, 7 Bing. 745; and so, also, is an assignee of the reversion in part of the premises. Twynam v. Pickard, 2 B. and A. 105. But the assignee must have the same reversion as the lessor had at the time of granting the lease (Webb v. Russell, supra; Whitton e. Peacock, 2 Bing. N. C. 411), and must claim through him. Thus, a lord who enters for a forfeiture can
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.
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. As 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. (13) So also in the case before-mentioned, of a debt by simple contract, if the debtor
(d) Co. Litt. 215. Moor. 876. Cro. Jac. 145.
uot take advantage of the covenants. Co. Litt. 215, b.; Chaworth v. Phillips, Moore, 876. Sec ondly, the assignee of the term may sue at common law, upon all covenants that run with the land. Spencer's Case, 4th, 5th and 7th resolutions. And his action is by force of the privity of estate, and the venue is therefore local. Stevenson v. Lambard, 2 East, 380.
Thus far of the persons who may sue upon a covenant; next, of those who may be sued thereIt is hardly necessary to observe, that the covenantor may be sued upon all his lawful covenants by force of the privity of contract. And when he has covenanted for himself and his heirs, the heir may be sued, but is only liable to the extent of the estate that has descended to him. Bac. Ab. Heir and Ancestor, F.; Willes, 585. And the executor may also be sued, between whom and the heir there is this difference, that whether the covenant does or does not run with the land, the former is bound, although not named, unless it be such as in its nature is determined by the death of the covenantor. Hyde v. Dean of Windsor, Cro. Eliz. £53. With respect to breaches committed since the death of the covenantor, the heir or executor may be sued as assignee of the reversion, or of the term, on such covenants as run with the land, excep that with respect to rent, the liability of the executor does not exceed what the property yields Tremeere . Morison, 1 Bing. N. C. 97-99; Derisley . Custance, 4 T. R. 75; Tilney r. Norris Carth. 519; 1 Ld. Raym. 453; Salk. 309, S. C.; 1 Bulstr. 23, per Fleming, C. J. The situa tion of a devisee or legatee of the reversion, and a legatee of the term, is the same with respect to being sued as to suing. Dyer, 257, a.; Com. Dig. Covenant, C. (2) Lastly, the grantee or assignee of the reversion and the assignee of the term are liable to be sued upon covenants that run with the land, with this distinction, that when the covenant extends to a thing in esse, parcel of the demise, the assignee is bound, although not named; but where it concerns a thing not in esse at the time of making the demise, but to be done thereafter, he must be named. Spencer's Case, 1st and 2d resolutions.
Between the assignee of the reversion and the assignee of the term there is, however, this difference, that the former is liable by force of the statute; the latter, at common law, by force of privity of estate.
It only remains to notice what covenants run with the land. According to the 4th resolution in Spencer's Case, all implied covenants do so. But what express covenants, to use the words in that case, touch of concern the thing demised," is frequently a question of great difficulty. To enumerate the various covenants that have been held to run with the land would exceed the limits of this note, and the student is therefore advised to peruse the valuable note on this subject to 1 Smith's Leading Cases, 29. It should be added that it is questionable whether the statute extends to the assignee of the reversion of a term created by writing, and not by a deed under seal. See Brydges c. Lewis, 11 L. J. Rep. (N. S.) Q. B. 268. The writ of covenant real was abolished by statute 3 and 4 Wm. IV, c. 27.]
(13) ["It is worthy of remark, that the learned commentator has not either named, described or even alluded to the consideration requisite to support an assumpsit; and what is more remarkable, the example put by him in the text in order to illustrate the nature of the action, is, in the terms in which it is there stated, a case of nudum pactum. See 1 Roll. Ab. 9, 1, 41, Doct, and Stud. 2, ch. 24; and 5 T. R. 143; that the promise will not lie for a mere nonfeasance, unless the promise is founded on a cousideration." Selw. N. P. 45.]
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 indorsee (f), 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 statute of frauds and perjuries, 29 Car. II, c. 3, enacts, that in the five *following cases no verbal promise shall be sufficient to ground an action [ *158] 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 marrriage. 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. (14)
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 necessarily 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
(e) 4 Rep. 94. (f) See book II, ch. 30.
(14) [These provisions in the statute have produced many decisions, both in the courts of law and equity. See 3 Chitty's Com. L. per tot. It is now settled, that if two persons go to a shop, and one order goods, and the other say, “If he does not pay I will," or "I will see you paid, he is not bound unless his engagement is reduced into writing. In all such cases the question is, who is the buyer, or to whom the credit is given, and who is the surety: and that question, from all the circumstances, must be ascertained by the jury: for if the person for whose use the goods are furnished be liable at all, any promise by a third person to discharge the debt must be in writing, otherwise it is void. 2. T. R. 80; H. Bl. Rep. 120; 1 Bos, and Pul. 158. Mutual promises to marry need not be in writing; the statute relates only to agreements made in consideration of the marriage. A lease not exceeding three years from the making thereof, and in which the rent reserved amounts to two-thirds of the improved value, is good without writing; but all othor parol leases or agreements for any interest in lands, have the effect of estates at will only. Bull. N. P. 279. All declarations of trusts, except such as result by implication of law, must be made in writing. 29 Car. II, c. 3, ss. 7 and 8. If a promise depends upon a contingency, which may or may not fall within a year, it is not within the statute; as a promise to pay a sum of money upon a death or marriage, or upon the return of a ship, or to leave a legacy by will, is good by parol; for such a promise may by possibility be performed within the year. 3 Burr. 1278; 1 Salk. 230; 3 id. 9, &c. Partial performance within the year, where the original undertaking is that the whole is to extend to a longer period, does not take the case out of the statute. 11 East, 142. But even a written undertaking to pay the debt of another is void, unless a good consideration appears in the writing: and the consideration, if any, cannot be proved by parol evidence. 5 East, 10. If a growing crop is purchased without writing, the agreement, before part execution, may be put an end to by parol notice. 6 East, 602. But a court of equity will decree a specific performance of a verbal contract, when it is confessed by a defendant in his answer; or when there has been a part performance of it. 3 Ves. Jun. 39, 378 and 712. If one party only signs an agreement, ho is bound by it; and if an agreement is by parol, but it is agreed it shall be reduced into writing, and this is prevented by the fraud of one of the parties, performance of it will be decreed. 2 Bro. 564, 565, 566; see 3 Woodd. Lect. lviii. and Fonblanque Tr. of Eq. b. 1, c. 3, ss. 8 and 9, where this subject is fully and learnedly discussed.]
Upon the subject of this note in general, see Browne on Statute of Frauds. And as to specific performance, see Story Eq. Juris. §§ 750 to 782, and Fry on specific performance. 105