that the defendant is herein permitted to wage his law, that is, to exculpate himself by oath, 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. And for this reason the action itself is much disused, and has given place to the action of trover.

The action of trover and conversion is a special action of the case, and lies against a man who, having found goods, refuses to deliver them to the owner: or, if any one have in his possession goods delivered to him, and he uses or sells them without the owner's consent, this is a conversion for which an action of trover may be brought; also, if he do not actually convert them, but refuses to deliver them up.

An action of trover also may be brought for goods detained; for the party shall have his goods delivered, if they may be had, or damages to the value for the detaining and conversion of them. After the goods are demanded, if the person having them denies the delivery thereof, this action lies; and a denial to deliver is a conversion in law: also trespass or trover lies for the same thing; and the alleging the conversion of the goods in trespass, is to aggravate damages. If where a bond, &c. is detained, the money be received thereon, action of account lies against the receiver.

For any live goods or things inanimate, an action of trover will lie; and a plaintiff may choose to have his action of trover against the first finder of the goods, or any other who gets them afterwards. And an executor may bring an action of trover for the goods of the testator. If, either by finding or delivery of goods, the defendant have a lawful possession, there must be a demand and refusal to make the conversion; but if the possession were tortuous, as if the defendant take away my hat, &c. the very taking is a sufficient proof of a conversion, without any thing farther.

This action also lies for goods, although they come into the possession of the plaintiff before the action brought, which doth not satisfy for the detainer, or purge the wrong. In case a person take the horse of another, and ride him, and then deliver the same to the party, he may, notwithstanding, have his action, it being a conversion, and re-delivery is no bar. But where a defendant generally tenders the goods, if the plaintiff refuse to receive them, that will go in mitigation of damages.

If a man find goods, he ought not to abuse or use them; for therein lies the offence to found this action, the point of which is the conversion. In this case, the party finding is to deliver them on demand, &c. though he may answer, that he knows not whether the plaintiff is the true owner. But where goods lost are found in the hands of another, if he bought them in open fair or market, this alters the property, and the plaintiff cannot recover them from him.

In action of trover, if a conversion cannot be proved, then proof is to be had of a demand made of the thing before the action brought, and that it was not delivered; and the property of the plaintiff must be proved, before the goods came to the defendant's hands.

The fact of the finding, or trover, is 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 prove 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.

CHAPTER X.

Of Debts, Covenants, and Promises.

WE shall now consider the injuries and their remedies, which happen against those rights of property that are founded upon and arise from contracts, either express or implied. These include three distinct species; debts, covenants, and promises.

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 nonpayment of these is an injury, for which the proper remedy is by action of debt to compel the performance of the contract, and recover the specific sum due. 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 think proper. 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 vary

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; 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.*

But in an action on the case, or 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. 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 either the whole in damages, or any inferior sum. And even in actions of debt where the contract is proved or admitted, if the defendant can shew that he has discharged any part of it, the plaintiff shall recover the residue.

2. A covenant also, contained in a deed, to do a direct act, or to omit one, is another species of express contracts, the breach of which is a civil injury. As if a man covenant 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 carries on his trade in the place forbidden, these are direct breaches of his covenant. The remedy for this is by a writ of covenant; which directs the sheriff to command the defendant, generally, to keep his covenant with the plaintiff (without specifying the nature of the covenant), or shew good cause to the contrary: and if he continue 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.

A covenant must be to do what is lawful and possible, or it will not be binding; and in such case, where there is any agreement under hand and seal, action of covenant may be brought on it: and if one is party to a deed, his agreement to pay amounts to a cove

nant.

Upon a bond action of covenant lies, it proving an agreement; and if a person covenant to pay another a certain sum of money

But it is now determined, that in an action of debt upon a simple contract, the plaintiff may recover a less sum than is stated in his writ or declaration. 1 Hen. Bl. 249; 2 Bl. Rep. 1221.

at a day, though he may bring action of debt for it, yet may writ of covenant be had at his election; but when only a hand is to a writing, and not a seal, this action will not lie, but an action of the case upon breach of the agreement.

If a man covenant with one to pay him money for time to come, and the covenantee die before the day, his executors or administrators shall have an action of covenant for the money, and recover the same: also, in every case where a testator is bound by a covenant, the executor shall be liable, if it be not determined by the testator's death. Not only parties to deeds, but their executors and administrators, may take advantage of covenants: but there may be an agreement and covenant only to be performed by the parties themselves.

In deeds and articles of covenants sometimes a clause for performance, with a penalty, is inserted; and at other times, and more frequently, bonds are given for the performance, with a sufficient penalty, separate from the deed; which last being sued, the jury must find the penalty; but on covenant, the damages only. And commonly the party damnified in this action can recover nothing but damages for the breach; except in real actions.

Where it is agreed that one man shall pay 100l. to another for lands in such a place, this is a mutual real covenant, and action of covenant lies, if the other party refuse to convey, &c. And when covenants are distinct and mutual, several actions may be brought against the parties: but if there be mutual covenants, and the one not to be performed before a covenant precedent, there the covenant is not suable till the other is performed.

If a person covenant expressly to repair a house, and it be burnt down by lightning or any other accident; yet he ought to repair it, or action of covenant lies against him: for it was in his power to have guarded against it in his contract by exception, &c. though a tenant is not so bound by covenant in law. But where the use of a thing is demised, and it runs to decay, so that the lessee or tenant cannot have the benefit of it; for this no action of covenant lies for the lessee; and if the lease, &c. be not good, there can be no covenant, nor any breach.

If a man make a lease of lands for years, and then turn out the lessee, he shall have covenant against the lessor, though there be no express covenant in the deed: but in case a stranger enter before such lessee, the lessee shall not have an action of covenant upon this ouster, because he was never a lessee in privity to have the action yet a stranger to the deed may not take advantage of

a covenant.

A covenant for the lessee to enjoy against all men extends not to tortuous acts and entries, &c. for which the lessee hath his proper remedy against the aggressors. If a person covenant in a deed, that he hath a good right to grant, &c. and he have no right, it is a breach of covenant for which action of covenant lies: and where a man by his own act disables himself to perform a cove

F

nant, it is a breach thereof: and no duty or cause of action arises upon any covenant, till it be broken.

On covenants in general, if the plaintiff have judgment in an action for one breach, and afterwards the covenantor break his covenant again, a new action may be brought; and so for every breach; or in covenants perpetual, upon a new breach, a scire facias may be had on the former judgment, and the plaintiff need not bring any new writ of covenant.

3. A promise may be considered as 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 promise, undertake, or assume to build and cover a house within a time limited, and fail to do it; an action on the case will lie against the builder for this breach of his express promise, undertaking, or assumpsit. So also in the case before-mentioned, of a debt by simple contract, if the debtor promise to pay it, and do not, this breach of promise entitles the creditor to his action on the case, instead of being driven to an action of debt. 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, and by custom and act of parliament the indorsee, may recover the value of the note in damages, if it remain unpaid.

Some agreements indeed, though never so expressly made, are deemed of so important a nature, that they ought not to rest on 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 promises 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, 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.

These provisions in the statute have produced many decisions, both in the courts of law and equity.

It is determined, that if two persons go to a shop, and one orders