The Online Library of Liberty

A project of Liberty Fund, Inc.

• Commentaries On the Laws of England.
• Book the Third.: of Private Wrongs.
• Chapter I.: Of the Redress of Private Wrongs By the Mere Act of the Parties.
• Chapter II.: Of Redress By the Mere Operation of Law.
• Chapter III.: Of Courts In General.
• Chapter IV.: Of the Public Courts of Common Law and Fquity.
• * [*61 Chapter V.: Of Courts Ecclesiastical, Military, and Maritime.
• Chapter VI.: Of Courts of a Special Jurisdiction.
• Chapter VII.: Of the Cognizance of Private Wrongs.
• Chapter VIII.: Of Wrongs, and Their Remedies, Respecting the Rights of Persons.
• Chapter IX.: Of Injuries to Personal Property.
• Chapter X.: Of Injuries to Real Property; and First of Dispossession, Or Ouster of the Freehold.
• Chapter XI.: Of Dispossession, Or Ouster, of Chattels Real.
• Chapter XII.: Of Trespass.
• Chapter XIII.: Of Nuisance.
• Chapter XIV.: Of Waste.
• Chapter XV.: Of Subtraction.
• Chapter XVI.: Of Disturbance.
• Chapter XVII.: Of Injuries Proceeding From, Or Affecting, the Crown.
• Chapter XVIII.: Of the Pursuit of Remedies By Action; and First of the Original Writ.
• Chapter XIX.: Of Process.
• Chapter XX.: Of Pleading
• Chapter XXI.: Of Issue and Demurrer.
• Chapter XXII.: Of the Several Species of Trial.
• Chapter XXIII.: Of the Trial By Jury.
• Chapter XXIV.: Of Judgment and Its Incidents.
• Chapter XXV.: Of Proceedings In the Nature of Appeals.
• Chapter XXVI.: Of Execution.
• Chapter XXVII.: Of Proceedings In the Courts of Equity.
• Appendix.
• No. I.: Proceedings On a Writ of Right Patent.
• * *vii.] No. II.: Proceedings On an Action of Trespass In Ejectment, By Original, In the King’s Bench.
• * [*xiii. No. III.: Proceedings On an Action of Debt In the Court of Common Pleas; Removed Into the King’s Bench By Writ of Error.
• Book the Fourth.: of Public Wrongs.
• Chapter I.: Of the Nature of Crimes, and Their Punishment.
• Chapter II.: Of the Persons Capable of Committing Crimes.
• Chapter III.: Of Principals and Accessories.
• Chapter IV.: Of Offences Against God and Religion.
• * [*66 Chapter V.: Of Offences Against the Law of Nations.
• Chapter VI.: Of High Treason.
• Chapter VII.: Of Felonies Injurious to the King’s Prerogative.
• Chapter VIII.: Of PrÆmunire.
• Chapter IX.: Of Misprisions and Contempts Affecting the King and Government.
• Chapter X.: Of Offences Against Public Justice.
• Chapter XI.: Of Offences Against the Public Peace.
• Chapter XII.: Of Offences Against Public Trade.
• Chapter XIII.: Of Offences Against the Public Health, and the Public Police Or Economy.
• Chapter XIV.: Of Homicide.
• Chapter XV.: Of Offences Against the Persons of Individuals.
• Chapter XVI.: Of Offences Against the Habitations of Individuals.
• Chapter XVII.: Of Offences Against Private Property.
• Chapter XVIII.: Of the Means of Preventing Offences.
• Chapter XIX.: Of Courts of a Criminal Jurisdiction.
• Chapter XX.: Of Summary Convictions.
• Chapter XXI.: Of Arrests.
• Chapter XXII.: Of Commitment and Bail.
• Chapter XXIII.: Of the Several Modes of Prosecution.
• Chapter XXIV.: Of Process Upon an Indictment.
• Chapter XXV.: Of Arraignment and Its Incidents.
• Chapter XXVI.: Of Plea, and Issue.
• Chapter XXVII.: Of Trial and Conviction.
• Chapter XXVIII.: Of the Benefit of Clergy.
• Chapter XXIX.: Of Judgment and Its Consequences.
• Chapter XXX.: Of Reversal of Judgment.
• Chapter XXXI.: Of Reprieve and Pardon.
• Chapter XXXII.: Of Execution.
• Chapter XXXIII.: Of the Rise, Progress, and Gradual Improvements of the Laws of England.
• Appendix.
• Sect. 1.: Record of an Indictment and Conviction of Murder, At the Assizes.
• Sect. 2.: Conviction of Manslaughter.
• Sect. 3.: Entry of a Trial Instanter In the Court of King’s Bench, Upon a Collateral Issue; and Rule of Court For Execution Thereon.
• Sect. 4.: Warrant of Execution On Judgment of Death, At the General Gaol-delivery In London and Middlesex.
• Sect. 5.: Writ of Execution Upon a Judgment of Murder, Before the King In Parliament.
• Barron Field, an Analysis of Blackstone’s Commentaries On the Laws of England.

CHAPTER IX.

OF INJURIES TO PERSONAL PROPERTY.

**144]In the preceding chapter we considered the wrongs or injuries that affected the rights of persons, either considered as individuals, or as related to each other; and are at present to enter upon the discussion of such injuries as affect the rights of property, together with the remedies which the law has given to repair or redress them.

And here again we must follow our former division(a) of property into personal and real: personal, which consists in goods, money, and all other movable chattels, and things thereunto incident; a property which may attend a man’s person wherever he goes, and from thence receives its denomination: and real property, which consists of such things as are permanent, fixed, and immovable; as lands, tenements, and hereditaments of all kinds, which are not annexed to the person, nor can be moved from the place in which they subsist.

**145]First, then, we are to consider the injuries that may be offered to the rights of personal property; and, of these, first the rights of personal property in possession, and then those that are in action only.(b)

I. The rights of personal property in possession are liable to two species of injuries: the amotion or deprivation of that possession; and the abuse or damage of the chattels while the possession continues in the legal owner. The former, or deprivation of possession, is also divisible into two branches; the unjust and unlawful taking them away; and the unjust detaining them, though the original taking might be lawful.

1. And first of an unlawful taking. The right of property in all external things being solely acquired by occupancy, as has been formerly stated, and preserved and transferred by grants, deeds, and wills, which are a continuation of that occupancy; it follows, as a necessary consequence, that when I have once gained a rightful possession of any goods or chattels, either by a just occupancy or by a legal transfer, whoever either by fraud or force dispossesses me of them, is guilty of a transgression against the law of society, which is a kind of secondary law of nature. For there must be an end of all social commerce between man and man, unless private possessions be secured from unjust invasions: and, if an acquisition of goods by either force or fraud were allowed to be a sufficient title, all property would soon be confined to the most strong, or the most cunning; and the weak and simple-minded part of mankind (which is by far the most numerous division) could never be secure of their possessions.

The wrongful taking of goods being thus most clearly an injury, the next consideration is, what remedy the law of England has given for it. And this is, in the first place, the restitution of the goods themselves so wrongfully taken, with **146]damages for the loss sustained by such unjust invasion; which is effected by action of replevin; an institution which the Mirror(c) ascribes to Glanvil, chief justice to king Henry the Second. This obtains only in one instance of an unlawful taking, that of a wrongful distress:1 and this and the action of detinue (of which I shall presently say more) are almost the only actions in which the actual specific possession of the identical personal chattel is restored to the proper owner. For things personal are looked upon by the law as of a nature so transitory and perishable, that it is for the most part impossible either to ascertain their identity, or to restore them in the same condition as when they came to the hands of the wrongful possessor. And, since it is a maxim that “lex neminem cogit ad vana, seu impossibilia,” it therefore contents itself in general with restoring, not the thing itself, but a pecuniary equivalent, to the party injured; by giving him a satisfaction in damages. But in the case of a distress, the goods are from the first taking in the custody of the law, and not merely in that of the distrainor; and therefore they may not only be identified, but also restored to their first possessor, without any material change in their condition. And, being thus in the custody of the law, the taking them back by force is looked upon as an atrocious injury, and denominated a rescous, for which the distrainor has a remedy in damages, either by writ of rescous,(d) in case they were going to the pound, or by writ de parco fracto, or pound-breach,(e) in case they were actually impounded. He may also at his option bring an action on the case for this injury; and shall therein, if the distress were taken for rent, recover treble damages.(f) The term rescous is likewise applied to the forcible delivery of a defendant, when arrested, from the officer who is carrying him to prison. In which circumstances the plaintiff has a similar remedy by action on the case, or of rescous:(g) or, if the sheriff makes a return of such *[*147rescous to the court out of which the process issued, the rescuer will be punished by attachment.(h)

An action of replevin, the regular way of contesting the validity of the transaction, is founded, I said, upon a distress taken wrongfully and without sufficient cause; being a re-delivery of the pledge,(i) or thing taken in distress, to the owner, upon his giving security to try the right of the distress, and to restore it if the right be adjudged against him:(j) after which the distrainor may keep it till tender made of sufficient amends; but must then re-deliver it to the owner.(k) And formerly, when the party distrained upon intended to dispute the right of the distress, he had no other process by the old common law than by a writ of replevin, replegiari facias;(l) which issued out of chancery, commanding the sheriff to deliver the distress to the owner, and afterwards to do justice in respect of the matter in dispute in his own county-court. But this being a tedious method of proceeding, the beasts or other goods were long detained from the owner, to his great loss and damage.(m) For which reason the statute of Marlbridge(n) directs that (without suing a writ out of the chancery) the sheriff immediately upon plaint to him made shall proceed to replevy the goods. And, for the greater ease of the parties, it is further provided, by statute 1 P. & M. c. 12, that the sheriff shall make at least four deputies in each county, for the sole purpose of making replevins. Upon application therefore, either to the sheriff or one of his said deputies, security is to be given, in pursuance of the statute of Westm. 2, 13 Edw. I. c. 2: 1. That the party replevying will pursue his action against the distrainor, for which purpose he puts in plegios de prosequendo, or pledges to prosecute; and, 2. That if the right be determined against him he will return the distress again; for which purpose he is also bound to find plegios de retorno **148]habendo. Besides these pledges, the sufficiency of which is discretionary and at the peril of the sheriff, the statute 11 Geo. II. c. 19 requires that the officer granting a replevin on a distress for rent shall take a bond with two sureties in a sum of double the value of the goods distrained, conditioned to prosecute the suit with effect and without delay, and for the return of the goods; which bond shall be assigned to the avowant or person making cognizance, on request made to the officer; and if forfeited may be sued in the name of the assignee.2 And certainly, as the end of all distresses is only to compel the party distrained upon to satisfy the debt or duty owing from him, this end is as well answered by such sufficient sureties as by retaining the very distress, which might frequently occasion great inconvenience to the owner; and that the law never wantonly inflicts. The sheriff on receiving such security is immediately, by his officers, to cause the chattels taken in distress to be restored into the possession of the party distrained upon; unless the distrainor claims a property in the goods so taken. For if by this method of distress the distrainor happens to come again into possession of his own property in goods which before he had lost, the law allows him to keep them, without any reference to the manner by which he thus has gained possession, being a kind of personal remitter.(o) If therefore the distrainor claims any such property, the part-replevying must sue out a writ de proprietate probanda, in which the sheriff is to try, by an inquest, in whom the property previous to the distress subsisted.(p) And if it be found to be in the distrainor, the sheriff can proceed no further, but must return the claim of property to the court of king’s bench or common pleas, to be there further prosecuted, if thought advisable, and there finally determined.(q)

But if no claim of property be put in, or if (upon trial) the sheriff’s inquest determines it against the distrainor; then the sheriff is to replevy the goods (making use of even force, **149]if the distrainor makes resistance)(r) in case the goods be found within his county. But if the distress be carried out of the county, or concealed, then the sheriff may return that the goods, or beasts, are eloigned, elongata, carried to a distance, to places to him unknown; and thereupon the party replevying shall have a writ of capias in withernam, in vetito (or more properly repetito) namio; a term which signifies a second or reciprocal distress,(s) in lieu of the first which was eloigned. It is therefore a command to the sheriff to take other goods of the distrainor in lieu of the distress formerly taken, and eloigned, or withheld from the owner.(t) So that here is now distress against distress: one being taken to answer the other by way of reprisal,(u) and as a punishment for the illegal behaviour of the original distrainor. For which reason goods taken in withernam cannot be replevied till the original distress is forthcoming.(v)

But in common cases the goods are delivered back to the party replevying, who is then bound to bring his action of replevin, which may be prosecuted in the county-court, be the distress of what value it may.(w) But either party may remove it to the superior courts of king’s bench or common pleas, by writ of recordari or pone;(x) the plaintiff at pleasure, the defendant upon reasonable cause;(y) and also, if in the course of proceeding any right of freehold comes in question, the sheriff can proceed no further;(z) so that it is usual to carry it up in the first instance to the courts of Westminster hall.3 *[*150Upon this action brought, and declaration delivered, the distrainor, who is now the defendant, makes avowry; that is, he avows taking the distress in his own right, or the right of his wife;(a) and sets forth the reason of it, as for rent-arrere, damage done, or other cause: or else, if he justifies in another’s right as his bailiff or servant, he is said to make cognizance; that is, he acknowledges the taking, but insists that such taking was legal, as he acted by the command of one who had a right to distrain; and on the truth and legal merits of this avowry or cognizance the cause is determined. If it be determined for the plaintiff; viz., that the distress was wrongfully taken; he has already got his goods back into his own possession, and shall keep them, and moreover recover damages.(b) But if the defendant prevails, by the default or nonsuit of the plaintiff, then he shall have a writ de retorno habendo, whereby the goods or chattels (which were distrained and then replevied) are returned again into his custody, to be sold, or otherwise disposed of, as if no replevin hath been made. And at the common law, the plaintiff might have brought another replevin, and so in infinitum, to the intolerable vexation of the defendant. Wherefore the statute of Westm. 2, c. 2 restrains the plaintiff, when nonsuited, from suing out any fresh replevin, but allows him a judicial writ issuing out of the original record, and called a writ of second deliverance, in order to have the same distress again delivered to him, on giving the like security as before. And, if the plaintiff be a second time nonsuit, or if the defendant has judgment upon verdict or demurrer in the first replevin, he shall have a writ of return irreplevisable; after which no writ of second deliverance shall be allowed.(c) But in case of a distress for rent-arrere, the writ of second deliverance is, in effect,(d) taken away by statute 17 Car. II. c. 7, which directs that if the plaintiff be nonsuit before issue joined, then upon suggestion made on the record in nature of an avowry or cognizance; or if judgment be given against him on demurrer, then, without any such suggestion, the defendant may have **151]a writ to inquire into the value of the distress by a jury, and shall recover the amount of it in damages, if less than the arrear of rent; or, if more, then so much as shall be equal to such arrear, with costs; or, if the nonsuit be after issue joined, or if a verdict be against the plaintiff, then the jury impanelled to try the cause shall assess such arrears for the defendant: and if (in any of these cases) the distress be insufficient to answer the arrears distrained for, the defendant may take a further distress or distresses.(e) But otherwise, if pending a replevin for a former distress, a man distrains again for the same rent or service, then the party is not driven to his action of replevin, but shall have a writ of recaption,(f) and recover damages for the defendant the re-distrainor’s contempt of the process of the law.

In like manner, other remedies for other unlawful takings of a man’s goods consist only in recovering a satisfaction in damages. And if a man takes the goods of another out of his actual or virtual possession, without having a lawful title so to do, it is an injury, which though it doth not amount to felony unless it be done animo furandi, is nevertheless a transgression for which an action of trespass vi et armis will lie; wherein the plaintiff shall not recover the thing itself, but only damages for the loss of it.4 Or, if committed without force, the party may, at his choice, have another remedy in damages by action of trover and conversion, of which I shall presently say more.5

2. Deprivation of possession may also be an unjust detainer of another’s goods, though the original taking was lawful.6 As if I distrain another’s cattle damage-feasant, and before they are impounded he tenders me sufficient amends; now, though the original taking was lawful, my subsequent detainment of them after tender of amends is wrongful, and he shall have an action of replevin against me to recover them:(g) in which he shall recover damages only for the detention and not **152]for the caption, because the original taking was lawful. Or, if I lend a man a horse, and he afterwards refuses to restore it, this injury consists in the detaining and not in the original taking, and the regular method for me to recover possession is by action of detinue.(h) In this action of detinue it is necessary to ascertain the thing detained, in such manner as that it may be specifically known and recovered. Therefore it cannot be brought for money, corn, or the like, for that cannot be known from other money or corn, unless it be in a bag or a sack, for then it may be distinguishably marked. In order therefore to ground an action of detinue, which is only for the detaining, these points are necessary:(i) 1. That the defendant came lawfully into possession of the goods as either by delivery to him, or finding them; 2. That the plaintiff have a property; 3. That the goods themselves be of some value; and 4. That they be ascertained in point of identity. Upon this the jury, if they find for the plaintiff, assess the respective values of the several parcels detained, and also damages for the detention. And the judgment is conditional; that the plaintiff recover the said goods, or (if they cannot be had) their respective values, and also the damages for detaining them.(j)7 But there is one disadvantage which attends this action, viz., that the defendant is herein permitted to wage his law, that is, to exculpate himself by oath,(k) and thereby defeat the plaintiff of his remedy: which privilege is grounded on the confidence originally reposed in the bailee by the bailor, in the borrower by the lender, and the like; from whence arose a strong presumptive evidence that in the plaintiff’s own opinion the defendant was worthy of credit. But, for this reason, the action itself is of late much disused, and has given place to the action of trover.8

This action of trover and conversion was in its original an action of trespass upon the case, for the recovery of damages against such person as had found another’s goods and refused to deliver them on demand, but converted them to his own *[*153use; from which finding and converting it is called an action of trover and conversion. The freedom of this action from wager of law, and the less degree of certainty requisite in describing the goods,(l) gave it so considerable an advantage over the action of detinue, that by a fiction of law actions of trover were at length permitted to be brought against any man who had in his possession by any means whatsoever the personal goods of another, and sold them or used them without the consent of the owner, or refused to deliver them when demanded. The injury lies in the conversion; for any man may take the goods of another into possession, if he finds them; but no finder is allowed to acquire a property therein, unless the owner be forever unknown:(m) and therefore he must not convert them to his own use, which the law presumes him to do if he refuses them to the owner: for which reason such refusal also is, prima facie, sufficient evidence of a conversion.(n) The fact of the finding or trover is therefore now totally immaterial; for the plaintiff needs only to suggest (as words of form) that he lost such goods, and that the defendant found them; and if he proves that the goods are his property and that the defendant had them in his possession, it is sufficient. But a conversion must be fully proved; and then in this action the plaintiff shall recover damages, equal to the value of the thing converted, but not the thing itself; which nothing will recover but an action of detinue or replevin.

As to the damage that may be offered to things personal while in the possession of the owner, as hunting a man’s deer, shooting his dogs, poisoning his cattle, or in any wise taking from the value of any of his chattels or making them in a worse condition than before, these are injuries too obvious to need explication. I have only therefore to mention the remedies given by the law to redress them, which are in two shapes; by action of trespass vi et armis, where the act is in itself immediately **154]injurious to another’s property, and therefore necessarily accompanied with some degree of force; and by special action on the case, where the act is in itself indifferent, and the injury only consequential, and therefore arising without any breach of the peace. In both of which suits the plaintiff shall recover damages, in proportion to the injury which he proves that his property has sustained. And it is not material whether the damage be done by the defendant himself, or his servants by his direction; for the action will lie against the master as well as the servant.(o) And, if a man keeps a dog or other brute animal, used to do mischief, as by worrying sheep, or the like, the owner must answer for the consequences, if he knows of such evil habit.9

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.(q) 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 her; 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.

(p) 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 **155]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 30l., I am not at liberty to prove a debt of 20l. 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 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. *[*156For 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 30l., 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 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 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 contract, 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 a trade in a particular place, and is not at York at the time appointed, or *[*157carries 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.(z) 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 the 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 the rents and profits, and not as the conveyance of any real interest in the land, **158]the antient 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 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 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.

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 *[*159a 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 endorsee,(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 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.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 **160]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 beforehand 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 may afterwards bring an action of debt upon this judgment,(g) and shall not be put upon the proof of the original cause of action; but upon showing 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) **161]that a forfeiture imposed by the by-laws and private ordinances of a corporation upon any that belong to the body, or an amercement set in a court-leet or court-baron upon any of the suitors to the court, (for otherwise it will not be binding,)(h) immediately creates a debt in the eye of the law; and such forfeiture or amercement, if unpaid, works an injury to the party or parties entitled to receive it: for which the remedy is by action of debt.(i)

The same reason may with equal justice be applied to all penal statutes, that is, such acts of parliament whereby a forfeiture is inflicted for transgressing the provisions therein enacted. The party offending is here bound by the fundamental contract of society to obey the directions of the legislature, and pay the forfeiture incurred to such persons as the law requires. The usual application of this forfeiture is either to the party aggrieved, or else to any of the king’s subjects in general. Of the former sort is the forfeiture inflicted by the statute of Winchester(k) (explained and enforced by several subsequent statutes)(l) upon the hundred wherein a man is robbed, which is meant to oblige the hundredors to make hue and cry after the felon; for if they take him they stand excused. But otherwise the party robbed is entitled to prosecute them by a special action on the case, for damages equivalent to his loss. And of the same nature is the action given by statute 9 Geo. I. c. 22, commonly called the black act, against the inhabitants of any hundred, in order to make satisfaction in damages to all persons who have suffered by the offences enumerated and made felony by that act. But more usually these forfeitures created by statute are given at large to any common informer; or, in other words, to any such person or persons as will sue for the same: and hence such actions are called popular actions, because they are given to the people in general.(m) Sometimes one part is given to the king, to the poor, or to some public use, and the other part to the *[*162informer or prosecutor: and then the suit is called a qui tam action, because it is brought by a person “qui tam pro domino rege, &c., quam pro se ipso in hac parte sequitur.” If the king therefore himself commences this suit, he shall have the whole forfeiture.(n) But if any one hath begun a qui tam, or popular action, no other person can pursue it: and the verdict passed upon the defendant in the first suit is a bar to all others, and conclusive even to the king himself. This has frequently occasioned offenders to procure their own friends to begin a suit, in order to forestall and prevent other actions: which practice is in some measure prevented by a statute made in the reign of a very sharp-sighted prince in penal laws, 4 Hen. VII. c. 20, which enacts that no recovery, otherwise than by verdict, obtained by collusion in an action popular, shall be a bar to any other action prosecuted bona fide. A provision that seems borrowed from the rule of the Roman law, that if a person was acquitted of any accusation merely by the prevarication of the accuser, a new prosecution might be commenced against him.(o)

A second class of implied contracts are such as do not arise from the express determination of any court, or the positive direction of any statute; but from natural reason, and the just construction of law. Which class extends to all presumptive undertakings or assumpsits; which though never perhaps actually made, yet constantly arise from the general implication and intendment of the courts of judicature, that every man hath engaged to perform what his duty or justice requires. Thus,

1. If I employ a person to transact any business for me, or perform any work, the law implies that I undertook or assumed to pay him so much as his labour deserved. And if I neglect to make him amends, he has a remedy for this injury by bringing his action on the case upon this implied assumpsit; wherein he is at liberty to suggest that I promised to pay him as *[*163much as he reasonably deserved, and then to aver that his trouble was really worth such a particular sum, which the defendant has omitted to pay. But this valuation of his trouble is submitted to the determination of a jury; who will assess such a sum in damages as they think he really merited. This is called an assumpsit on a quantum meruit.

2. There is also an implied assumpsit on a quantum valebat, which is very similar to the former, being only where one takes up goods or wares of a tradesman, without expressly agreeing for the price. There the law concludes, that both parties did intentionally agree that the real value of the goods should be paid; and an action on the case may be brought accordingly, if the vendee refuses to pay that value.

3. A third species of implied assumpsits is when one has had and received money belonging to another, without any valuable consideration given on the receiver’s part; for the law construes this to be money had and received for the use of the owner only; and implies that the person so receiving promised, and undertook, to account for it to the true proprietor. And, if he unjustly detains it, an action on the case lies against him for the breach of such implied promise and undertaking; and he will be made to repay the owner in damages, equivalent to what he has detained in violation of such his promise. This is a very extensive and beneficial remedy, applicable to almost every case where the defendant has received money which ex æquo et bono he ought to refund. It lies for money paid by mistake, or on a consideration which happens to fail, or through imposition, extortion, or oppression, or where any undue advantage is taken of the plaintiff’s situation.(p)

4. Where a person has laid out and expended his own money for the use of another, at his request, the law implies a promise of repayment, and an action will lie on this assumpsit.(q)15

5. **164]Likewise, fifthly, upon a stated account between two merchants, or other persons, the law implies that he, against whom the balance appears, has engaged to pay it to the other; though there be not any actual promise. And from this implication it is frequent for actions on the case to be brought, declaring that the plaintiff and defendant had settled their accounts together, insimul computassent, (which gives name to this species of assumpsit,) and that the defendant engaged to pay the plaintiff the balance, but has since neglected to do it. But if no account has been made up, then the legal remedy is by bringing a writ of account de computo;(r) commanding the defendant to render a just account to the plaintiff, or show the court good cause to the contrary. In this action, if the plaintiff succeeds, there are two judgments: the first is, that the defendant do account (quod computet) before auditors appointed by the court; and, when such account is finished, then the second judgment is, that he do pay the plaintiff so much as he is found in arrear. This action, by the old common law,(s) lay only against the parties themselves, and not their executors; because matters of account rested solely on their own knowledge. But this defect, after many fruitless attempts in parliament, was at last remedied by statute 4 Anne, c. 16, which gives an action of account against the executors and administrators. But, however, it is found by experience, that the most ready and effectual way to settle these matters of account is by bill in a court of equity, where a discovery may be had on the defendant’s oath, without relying merely on the evidence which the plaintiff may be able to produce. Wherefore actions of account, to compel a man to bring in and settle his accounts, are now very seldom used; though, when an account is once stated, nothing is more common than an action upon the implied assumpsit to pay the balance.

6. **165]The last class of contracts, implied by reason and construction of law, arises upon this supposition, that every one who undertakes any office, employment, trust, or duty, contracts with those who employ or intrust him, to perform it with integrity, diligence, and skill. And, if by his want of either of those qualities any injury accrues to individuals, they have therefore their remedy in damages by a special action on the case. A few instances will fully illustrate this matter. If an officer of the public is guilty of neglect of duty, or a palpable breach of it, of non-feasance or of mis-feasance; as, if the sheriff does not execute a writ sent to him, or if he wilfully makes a false return thereof; in both these cases the party aggrieved shall have an action on the case for damages to be assessed by a jury.(t) If a sheriff or gaoler suffers a prisoner, who is taken upon mesne process, (that is, during the pendency of a suit,) to escape, he is liable to an action on the case.(u) But if, after judgment, a gaoler or a sheriff permits a debtor to escape, who is charged in execution for a certain sum, the debt immediately becomes his own, and he is compellable by action of debt, being for a sum liquidated and ascertained, to satisfy the creditor his whole demand; which doctrine is grounded(w) on the equity of the statute of Westm. 2, 13 Edw. I. c. 11, and 1 Ric. II. c. 12. An advocate or attorney that betray the cause of their client, or, being retained, neglect to appear at the trial, by which the cause miscarries, are liable to an action on the case for a reparation to their injured client.(x)16 There is also in law always an implied contract with a common inn-keeper to secure his guest’s goods in his inn; with a common carrier, or bargemaster, to be answerable for the goods he carries; with a common farrier, that he shoes a horse well, without laming him; with a common tailor, or other workman, that he performs his business in a workman-like manner; in which, if they fail, an action on the case lies to recover damages for *[*166such breach of their general undertaking.(y) But if I employ a person to transact any of these concerns, whose common profession and business it is not, the law implies no such general undertaking; but, in order to charge him with damages, a special agreement is required. Also, if an inn-keeper, or other victualler, hangs out a sign and opens his house for travellers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages if he, without good reason, refuses to admit a traveller.(z) If any one cheats me with false cards or dice, or by false weights and measures, or by selling me one commodity for another, an action on the case also lies against him for damages, upon the contract which the law always implies, that every transaction is fair and honest.(a)

In contracts, likewise, for sales, it is constantly understood that the seller undertakes that the commodity he sells is his own;17 and if it proves otherwise, an action on the case lies against him, to exact damages for this deceit. In contracts for provisions, it is always implied that they are wholesome; and if they be not, the same remedy may be had. Also if he, that selleth any thing, doth upon the sale warrant it to be good, the law annexes a tacit contract to his warranty, that if it be not so, he shall make compensation to the buyer; else it is an injury to good faith, for which an action on the case will lie to recover damages.(b) The warranty must be upon the sale; for if it be made after, and not at, the time of the sale, it is a void warranty:(c) for it is then made without any consideration; neither does the buyer then take the goods upon the credit of the vendor. Also, the warranty can only reach to things in being at the time of the warranty made, and not to things in futuro; as, that a horse is sound at the buying of him, not that he will be sound two years hence.18 But if the vendor knew the goods **[**165to be unsound, and hath used any art to disguise them,(d) or if they are in any shape different from what he represents them to be to the buyer, this artifice shall be equivalent to an express warranty, and the vendor is answerable for their goodness. A general warranty will not extend to guard against defects that are plainly and obviously the object of one’s senses, as if a horse be warranted perfect, and wants either a tail or an ear, unless the buyer in this case be blind. But if cloth is warranted to be of such a length, when it is not, there an action on the case lies for damages; for that cannot be discerned by sight, but only by a collateral proof, the measuring it.(e) Also, if a horse is warranted sound, and he wants the sight of an eye, though this seems to be the object of one’s senses, yet, as the discernment of such defects is frequently matter of skill, it hath been held that an action on the case lieth to recover damages for this imposition.(f)

Besides the special action on the case, there is also a peculiar remedy, entitled an action of deceit;(g) to give damages in some particular cases of fraud; and principally where one man does any thing in the name of another, by which he is deceived or injured;(h) as if one brings an action in another’s name, and then suffers a nonsuit, whereby the plaintiff becomes liable to costs; or where one obtains or suffers a fraudulent recovery of lands, tenements, or chattels, to the prejudice of him that hath right. As when, by collusion, the attorney of the tenant makes default in a real action, or where the sheriff returns that the tenant was summoned when he was not so, and in either case he loses the land, the writ of deceit lies against the demandant, and also the attorney or the sheriff and his officers; to annual the former proceedings, and recover back the land.(i) It also lies in the cases of warranty before mentioned, and other personal injuries committed contrary to good faith and honesty.(k)19 But an action on the case, for damages, in nature of a writ of deceit, is more usually brought upon these occasions.(l) And indeed it is the only(m) **[**166remedy for a lord of a manor, in or out of antient demesne, to reverse a fine or recovery had in the king’s courts of lands lying within his jurisdiction; which would otherwise be thereby turned into frank-fee. And this may be brought by the lord against the parties and cestuy que use of such fine or recovery; and thereby he shall obtain judgment not only for damages, (which are usually remitted,) but also to recover his court, and jurisdiction over the lands, and to annul the former proceedings.(n)

Thus much for the non-performance of contracts, express or implied; which includes every possible injury to what is by far the most considerable species of personal property, viz., that which consists in action merely, and not in possession. Which finishes our inquiries into such wrongs as may be offered to versonal property, with their several remedies by suit or action.

[(a) ] See book ii. ch. 2.

[(b) ] Book ii. ch. 25.

[(c) ] C. 2, 6.

[1 ] While the general rule in the United States accords with the law as established in England, that replevin, though not confined to cases of distress for rent, only lies where there has been an unlawful taking, (Pangburn vs. Patridge, 7 Johns. 140. Byrd vs. O’Hanlin, 1 Rep. Con. Ct. 401. Daggett vs. Robbins, 2 Blackf. 415. Wright vs. Armstrong, Brun. 130. Rector vs. Chevalier, 1 Missouri, 345,) yet in some of the States it is allowed and used as a remedy wherever one man claims goods in the possession of another and seeks to recover them specifically. Weaver vs. Lawrence, 1 Dall. 156. Cullum vs. Bevans, 6 Har. & J. 469.

It is either in the detinet or detinuit. Where the sheriff delivers the goods to the plaintiff the declaration is in the detinuit, and the plaintiff recovers only damages for the detention. In such case, if the defendant recover, there is a general verdict for the defendant and damages for the detention, on which there is a judgment pro retorno habendo and for the damages. Easton vs. Worthington, 5 Serg. & R. 130. Where the goods are not delivered to the plaintiff, but are allowed to remain in the defendant’s possession upon his claim of property and giving a bond for their forthcoming, or where the goods have been eloigned, the declaration is in the detinet. The plaintiff recovers the value of the goods in damages; or, if the defendant recovers, it is by a general verdict in his favour. Bower vs. Tallman, 5 Watts & Serg. 556.—Sharswood.

[(d) ] F. N. B. 101.

[(e) ] Ibid. 100.

[(f) ] Stat. 2 W. and M. Sess. 1, c. 5.

[(g) ] 6 Mod. 211.

[(h) ] Cro. Jac. 419. Salk. 586.

[(i) ] See page 13.

[(j) ] Co. Litt. 145.

[(k) ] 8 Rep. 147.

[(l) ] F. N. B. 68.

[(m) ] 2 Inst. 139.

[(n) ] 52 Hen. III. c. 21.

[2 ] But for the greater ease of the parties it is now provided, by stat. 19 & 20 Vict. c. 108, 63-66, that the registrar of the county court of the district in which the distress is taken shall grant replevins. Upon application therefore to the registrar, security is to be given by the replevisor for such an amount as the registrar shall deem sufficient to cover the rent or damage, in respect of which the distress was made and the costs of the action which is to follow, that he will pursue his action against the distrainor either in one of the superior courts of law or in the county court.

If the replevisor elects to sue in a superior court, the bond must be conditioned,—1, that the party replevying shall commence an action of replevin within one week, and prosecute the same with effect and without delay; 2, that, unless judgment be obtained by default, he shall prove either that he had good ground for believing that the title to some corporeal or incorporeal hereditament, or to some toll-market, fair, or franchise, was in question, or that the rent or damage in respect of which the distress was made exceeded twenty pounds; and, 3, that he shall make a return of the goods, if a return thereof shall be adjudged.

If the replevisor elects to sue in the county court, the bond shall be conditioned,—1, to commence the action within one month and to prosecute the same without delay; and, 2, to make a return of the goods, if a return be ordered.—Kerr.

[(o) ] See page 19.

[(p) ] Finch, L. 316.

[(q) ] Co. Litt. 145. Finch, L. 450.

[(r) ] 2 Inst. 193.

[(s) ] Smith’s Commonw. b. iii. c. 10. 2 Inst. 141. Hickes’s Thesaur. 164.

[(t) ] F. N. B. 69, 73.

[(u) ] In the old northern languages the word withernam is used as equivalent to reprisals. Stiernhook, de jure Sueon. l. 1, c. 10.

[(v) ] Raym. 475. The substance of this rule composed the terms of that famous question with which Sir Thomas More (when a student on his travels) is said to have puzzled a pragmatical professor in the University of Bruges, in Flanders, who gave a universal challenge to dispute with any person in any science; in omni scibili, et de quolibet ente. Upon which Mr. More sent him this question,—“utrum averia carucæ, capta in vetito namio, sint irreplegibilia,” whether beasts of the plough, taken in withernam, are incapable of being replevied. Hoddesd. c. 5.

[(w) ] 2 Inst. 139.

[(x) ] Ibid. 23.

[(y) ] F. N. B. 69, 70.

[(z) ] Finch, L. 317.

[3 ] Now, however, by stat. 9 & 10 Vict. c. 95, s. 119, all actions of replevin in cases of distress for rent in arrear or damage-feasant shall be brought without writ in the New County Court and (s. 120) in the court holden for the district wherein the distress was taken. But (s. 121) in case either party declare to the court that the title to any hereditament or to any toll-market, fair, or franchise is in question, or that the rent or damage in respect of which the distress was taken exceeds 20l., and becomes bound with two sureties to prosecute the suit without delay and to prove that such title was in dispute, or that there was ground for believing the rent or damage to exceed 20l.,—then the action may be removed before any court competent to try the same, which is done not by recordari, but by writ of certiorari, the new county courts being courts of record, which the schiremotes were not.—Stewart.

[(a) ] 2 Saund. 195.

[(b) ] F. N. B. 69.

[(c) ] 2 Inst. 340.

[(d) ] 1 Ventr. 64.

[(e) ] Stat. 17 Car. II. c. 7.

[(f) ] F. N. B. 71.

[4 ] In order to sustain trespass for taking goods, the actual or constructive possession must be vested in the plaintiff at the time the act complained of was done. For instance, the lord before seizure may bring the action against a stranger who should carry off an estray or wreck; for the right of possession, and thence the constructive possession, is in him. So the executor has the right immediately on the death of the testator, and the right draws after it a constructive possession. 1 T. R. 480. 2 Saund. 47, in notes. See 1 Chitty on Pl. 4th ed. 151 to 159.—Chitty.

[5 ] The general owner of a chattel, who has leased it for a time certain, cannot maintain trespass. He must sue in an action on the case for the injury to his reversionary interest. Soper vs. Sumner, 5 Vermont, 274. Putnam vs. Wyley, 8 Johns. 432. Fitler vs. Shotwell, 7 Watts & Serg. 14. In the case of personal chattels, he who has the general property need not prove possession in the first instance, because the law draws the possession to the property; but one who claims only a special property must prove that he had actual possession, without which no special property is complete. Mather vs. Trinity Church, 3 Serg. & F. 512.—Sharswood.

[6 ] As to the action of detinue in general, see Com. Dig. Detinue. 1 Chitty on Pl. 4th ed. 110 to 114. It has been supposed that detinue is not sustainable where the goods have been taken tortiously by the defendant; but that doctrine is erroneous, and it is the proper specific remedy for the recovery of the identical chattels personal, when they have not been taken as a distress. See cases and observations, 1 Chitty on Pl. 4th ed. 112, 113.—Chitty.

[(g) ] F. N. B. 69. 3 Red. 147.

[(h) ] F. N. B. 138.

[(i) ] Co. Litt. 286.

[(j) ] Co. Entr. 170. Cro. Jac. 681.

[7 ] Formerly the defendant in an action of detinue always had it in his power to retain the chattels upon payment of the value as assessed by the jury. The remedy at law was in this respect incomplete, and it became usual to apply to the court of chancery, which from a very early period interfered to compel the return of the chattels themselves. This jurisdiction seems originally to have been confined in its exercise to cases where the chattels were of peculiar value to the owner, as, for instance, heirlooms, jewelry, articles of curiosity or antiquity, family pictures, &c. But latterly it has been decided that the right to be protected in the use or beneficial enjoyment of property in specie is not confined to articles possessing any peculiar or intrinsic value. The damages recovered in an action, although equal to the intrinsic value of the article detained, may be infinitely less than that at which it is estimated by the owner, so that damages may not be any thing like adequate compensation to him for the loss. And accordingly the courts of common law have now (by a peculiar process of execution) the same powers as the court of chancery to compel the return of the chattel itself. Com. Law Proc. Act. 1854, s. 79. Regulæ Generales, Michaelmas Vacation. 1854.—Kerr.

[(k) ] Co. Litt. 295.

[8 ] Wager of law was abolished by stat. 3 & 4 W. IV. c. 42, s. 13.—Stewart.

[(l) ] Salk. 654.

[(m) ] See book i. ch. 8; book ii. ch. 1 and 26.

[(n) ] 10 Rep. 56.

[(o) ] Noy’s Max. c. 44.

[9 ] As to what is evidence of knowledge, see 4 Camp. 198. 2 Stra. 1264. 2 Esp. 482. But the owner is not answerable for the first mischief done by a dog, a bull, or other tame animal. Bull. N. P. 77. 12 Mod. 333. Ld. Raym. 608. Yet if he should carry his dog into a field where he himself is a trespasser, and the dog should kill sheep, this, though the first offence, might be stated and proved as an aggravation of the trespass. Burr. 2092. 2 Lev. 172. But where a fierce and vicious dog is kept chained for the defence of the premises, and any one incautiously, or not knowing of it, should go so near as to be injured by it, no action can be maintained by the person injured, though he was seeking the owner, with whom he had business. Bates vs. Crosbie, M. T. 1798, in the King’s Bench. If a man sets traps in his own grounds, but baited with such strong-scented articles as allure the neighbouring dogs from the premises of the owners or from the highways, the owner of a dog injured may maintain an action upon the case, 9 East, 227; but see Ilot vs. Wilkes, 3 Bar. & Ald. 304.—Chitty.

[(q) ] See book ii. ch. 30.

[(p) ] Cro. Car 254, 487.

[(r) ] F. N. B. 119.

[(s) ] See Appendix, No. III. 1.

[(t) ] 4 Rep. 94.

[(u) ] Bro. Ley gager, 93. Dyer, 219. 2 Roll. Abr. 706. 1 Show 215.

[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.—Archbold.

The judgment being final in the first instance (suing a writ of injury and wager of law having become almost obsolete) renders debt on simple contract, as well as specialty, a favourite form of action, and it is of daily occurrence.—Chitty.

[(v) ] 1 Roll. Rep. 257. Salk. 664.

[(w) ] F. N. B. 119.

[(x) ] Rast. Entr. 174.

[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 term, although the house be burned down and he do not enjoy the use of it. Shudbrick vs. Salmond, 3 Burr. 1637. Belfour vs. Weston, 1 T. R. 310. This is certainly a great hardship to lessees where they are not by the provisions of their lease 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 recovery of the rent,—which has generally been granted, on condition of the lessee’s surrendering the lease. Cambden vs. Morton, in Canc. E. 4 Geo. III. MS. Selw. N. P. 472. Brown vs. Quilter, Ambl. 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 vs. 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 toties quoties; but he cannot have recourse to both. Lowe vs. Peers, 4 Burr. 2228. See, further, on covenants, in Harg. & Butler’s Notes on Co. Litt.—Archbold.

[(y) ] F. N. B. 145.

[(z) ] Hob. on F. N. B. 146.

[(a) ] See book ii. ch. 21.

[(b) ] See book ii. ch. 9.

[(c) ] Bro. Abr. tit. covenant, 33. F. N. B. 476.

[12 ] The writ of covenant real (together with almost all other real actions) is now abolished by the stat. 3 & 4 W. IV. c. 27, s. 36.—Stewart.

[(d) ] Co. Litt. 215. Moor. 876. Cro. Jac. 145.

[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. Abr. 9, 1, 41. Doct. & Stud. ii. ch. 24, and 5 T. R. 143 that the action will not lie for a mere non-feasance unless the promise is founded on a consideration.) This remark ought not—neither was it intended—to derogate from the merit of a justly-celebrated writer, who for comprehensive design, luminous arrangement, and elegance of diction is unrivalled. Selw. N. P. 45.—Chitty.

[(e) ] 4 Rep. 99.

[(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. 1 H. Bl. Rep. 120. 1 Bos. & 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 other 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. 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. 280. 3 Salk. 9, &c. Partial performance within the year, where the original understanding 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, as by payment of part of the consideration-money, or by entering and expending money upon the estate; for such acts preclude the party from denying the existence of the contract, and prove that there can be no fraud or perjury in obtaining the execution of it. 3 Ves. Jr. 39, 378, 712. But lord Eldon seems to think that a specific performance cannot be decreed if the defendant in his answer admits a parol agreement, and at the same time insists upon the benefit of the statute. 6 Ves. Jr. 37. If one party only signs an agreement, he 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. lvii. and Fonblanque Tr. of. Eq. b. i. c. 3, ss. 8, 9, where this subject is fully and learnedly discussed.—Chitty.

[(g) ] Roll. Abr. 600, 601.

[(h) ] Law of Nisi Prius, 155.

[(i) ] 5 Rep. 64. Hob. 279.

[(k) ] 13 Edw. I. c. 1.

[(l) ] 27 Eliz. c. 13. 29 Car. II. c. 7. 8 Geo. II. c. 16. 22 Geo. II. c. 24.

[(m) ] See book ii. ch. 29.

[(n) ] 2 Hawk. P. C. 268.

[(o) ]Ff. 47, 15, 3.

[(p) ] 4 Burr. 1012.

[(q) ] Carth. 446. 2 Keb. 99.

[15 ] If a surety in a bond pays the debt of the principal, he may recover it back from the principal in an action of assumpsit for so much money paid and advanced to his use. Yet in ancient times this action could not be maintained; and it is said that the first case of the kind in which the plaintiff succeeded was tried before the late Mr. J. Gould, at Dorchester. But this is perfectly consistent with the equitable principles of an assumpsit. 2 T. R. 105.—Chitty.

[(r) ] F. N. B. 116.

[(s) ] Co. Litt. 90.

[(t) ] Moor. 431. 11 Rep. 99.

[(u) ] Cro. Eliz. 625. Comb. 69.

[(w) ] Bro. Abr. tit. Parliament, 19. 2 Inst. 382.

[(x) ] Finch, L. 183.

[16 ] The authority cited for this position falls short of maintaining it to its full extent. Finch merely lays down the law in the case of an attorney for the tenant in a real action making default; and F. N. B. 96, which is his authority, goes no further. As the advocate can maintain no action for his fees, (see ante, p. 28,) there would be some hardship in exposing him to an action for what his client might consider want of proper zeal, industry, or knowledge in the conduct of his cause. In two cases (Fell vs. Brown and Turner vs. Phillips, Peake’s N. P. C. 131, 166) lord Kenyon, at Nisi Prius, held such actions not to be maintainable.—Coleridge.

In the United States there is no distinction between attorneys and advocates. The same persons fulfil the duties of both. Hence no difference is made between their right to recover compensation for services in the one capacity or the other. The attorney is liable for want of ordinary care and skill. When he disobeys the lawful instructions of his client, and a loss ensues, for that loss he is responsible. But a client has no right to control his attorney in the due and orderly conduct of a suit; and it is his duty to do what the court would order to be done, though his client instruct him otherwise. Gilbert vs. Williams, 8 Mass. 57. Holmes vs. Peck, 1 Rhode Island, 245. Cox vs. Sullivan, 7 Georgia, 144. Cox vs. Livingston, 2 W. & S. 103. Wilcox vs. Plummer, 4 Peters, 172. Anon., 1 Wendell, 108.—Sharswood.

[(y) ] 11 Rep. 54. 1 Saund. 324.

[(z) ] 1 Ventr. 333.

[(a) ] 10 Rep. 56.

[17 ] As to warranties in general, see Bac. Abr. Actions on the Case, E. A warranty on the sale of a personal chattel, as to the right thereto, is generally implied, (ante, 2 book, 451. 3 id. 166. 3 T. R. 57. Peake C. N. P. 94. Cro. Jac. 474. 1 Roll. Abr. 90. 1 Salk. 210. Doug. 18;) but not as to the right of real property, (Doug. 654. 2 B. & P. 13. 3 B. & P. 166,) if a regular conveyance has been executed. 6 T. R. 606. Nor is a warranty of soundness, goodness, or value of a horse, or other personalty, implied (3 Camp. 351. 2 East, 314, 448. Ante, 2 book, 451; and see further, 2 Roll. Rep. 5. F. N. B. 94, acc. Wooddes. 415. 3 Id. 199, cont.;) and if a ship be sold with all faults, the vendor will not be liable to an action in respect to latent defects which he knows of, unless he used some artifice to conceal them from the purchasor. 3 Camp. 154, 506. But if it is the usage of the trade to specify defects, (as in case of sales of drugs if they are sea-damaged,) and none are specified, an implied warranty arises, (4 Taunt. 847;) and a warranty may be implied from the production of a sample, in a parol sale by sample, (4 Camp. 22, 144, 169. 4 B. & A. 387. 3 Stark. 32; and see notes;) and if the bulk of the goods do not correspond with the sample, it would be a breach of the warranty. If the contract describe the goods as of a particular denomination, there is an implied warranty that they shall be of a merchantable quality of the denomination mentioned in the contract. 4 Camp. 144. 3 Chit. Com. Law, 303. 1 Stark. 504. 4 Taunt. 853. 5 B. & A. 240. In all contracts for the sale of provisions there is an implied contract that they shall be wholesome. 1 Stark. 384. 2 Camp. 391. 3 Camp. 286 An implied warranty arises in the sale of goods where no opportunity of an inspection is given, (4 Camp. 144, 169. 6 Taunt. 108;) and if goods are ordered to be manufactured, a stipulation that they shall be proper is implied, (4 Camp. 144. 6 Taunt. 108,) especially if for a foreign market. 4 Camp. 169. 5 Taunt. 108. As to what is an express warranty, see 3 Chit. Com. Law, 305. Where a horse has been warranted sound, any infirmity rendering it unfit for immediate use is an unsoundness. 1 Stark. 127. The question of unsoundness is for the opinion of a jury. 7 Taunt. 153. It is not necessary for the purchasor to return the horse, unless it be expressly stipulated that he should do so. 2 Hen. Bla. 573. 2 T. R. 745. If not so stipulated, an action for the breach of warranty may be supported without returning the horse, or even giving notice of the unsoundness, and although the purchasor have re-sold the horse. 1 Hen. Bla. 17. 1 T. R. 136. 2 T. R. 745. But unless the horse be returned as soon as the defect is discovered, or if the horse has been long worked, the purchasor cannot recover back the purchase-money on the count for money had and received, (1 T. R. 136. 5 East. 449. 1 East, 274. 2 Camp. 410. 1 New Rep. 260;) and in all cases the vendee should object within a reasonable time, (1 J. B. Moore, 166;) and in these cases, or when the purchasor has doctored the horse, he has no defence to an action by the vendor for the price, but must proceed in a cross-action on the warranty, (1 T. R. 136. 5 East, 449. 7 id. 274. 2 Camp. 410. 1 N. R. 260. 3 Esp. Rep. 82. 4 Esp. Rep. 95;) and in these cases, if the vendee has accepted a bill or given any other security, it should seem that the breach of warranty is no defence to an action thereon, but he must proceed by cross-action. 2 Taunt. 2. 1 Stark. 51. 3 Camp. 38. S. C., 14 East, 486. 3 Stark. 175. But it would be otherwise if the vendee entirely repudiated the contract, (2 Taunt. 2,) as if he in the first instance, on discovery of the breach of warranty, returned or tendered back the horse. 2 Taunt. 2; and see 14 East, 484. 3 Camp. 38. Peake’s C. N. P. 38. For what damage defendant is liable in this action, see 2 J. B. Moore, 106.—Chitty.

[(b) ] F. N. B. 94.

[(c) ] Finch, L. 189.

[18 ] There seems to be no reason or principle why, upon a sufficient consideration, an express warranty that a horse should continue sound for two years should not be valid. Lord Mansfield declared, in a case in which the sentence in the text was cited, “There is no doubt but you may warrant a future event.” Doug. 735.—Christian.

[(d) ] 2 Roll. Rep. 5.

[(e) ] Finch, L. 189.

[(f) ] Salk. 611.

[(g) ] F. N. B. 95.

[(h) ] Law of Nisi Prius, 30.

[(i) ] Booth, Real Actions, 251. Rast. Entr. 221, 222. See page 405.

[(k) ] F. N. B. 98.

[19 ] The writ of deceit was abolished by the statute 3 & 4 Will. IV. c. 27.—Kerr.

[(l) ] Booth, 253. Co. Entr. 8.

[(m) ] 3 Lev. 419.

[(n) ] Rast. Entr. 100, b. 3 Lev. 415. Lutw. 711, 749.