PRIVATE WRONGS.
BOOK III.
Ch. 9.

CHAPTER THE NINTH.
OF INJURIES TO PERSONAL PROPERTY.

IN the preceding chapter we confidered the wrongs or injuries that affected the rights of persons, either confidered as individuals, or as related to each other ; and are at prefent to enter upon the difcuffion of fuch injuries as affect the rights of property, together with the remedies which the law has given to repair or redrefs them.

AND here again we muft follow our former divifion ^a of property into perfonal and real : perfonal, which confifts in goods, money, and all other moveable chattels, and things thereunto incident ; a property, which may attend a man's perfon wherever he goes, and from thence receives it's denomination : and real property, which confifts of fuch things as are permanent, fixed, and immoveable ; as lands, tenements, and hereditaments of all kinds, which are not annexed to the perfon, nor can be moved from the place in which they fubfift.

FIRST then we are to confider the injuries that may be offered to the rights of perfonal property ; and, of thefe, firft the rights of perfonal property in poffeffion, and then thofe that are in action only ^b.

{FS}
^a See book II. ch. 2. `
^b Ibid. ch. 25.
{FE}
I. THE
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I. THE rights of perfonal property in poffeffion are liable to two fpecies of injuries : the amotion or deprivation of that poffeffion ; and the abufe or damage of the chattels, while the poffeffion continues in the legal owner. The former, or deprivation of poffeffion, is alfo divifible into two branches ; the unjuft and unlawful taking them away ; and the unjuft detaining them, though the original taking might be lawful.

1. AND firft of an unlawful taking. The right of property in all external things being folely acquired by occupancy, as has been formerly ftated, and preferved and transferred by grants, deeds, and wills, which are a continuation of that occupancy ; it follows as a necffary confequence, that when I once have gained a rightful poffeffion of any goods or chattels, either by fraud or force difpoffeffes me of them is guilty of a tranfgreffion againft the law of fociety, which is a kind of fecondary law of nature. For there muft be an end of all focial commerce between man and man, unlefs private poffeffions be fecured from unjuft invafions : and, if an acquifition of goods by either force or fraud were allowed to be a fufficient title, all property would foon be confined to the moft ftrong, or the moft cunning ; and the weak and fimpleminded part of mankind (which is by far the moft numerous divifion) could never be fecure of their poffeffions.

THE wrongful taking of goods being thus moft clearly an injury, the next confideration is, what remedy the law of England has given for it. And this is, in the firft place, the reftitution of the goods themfelves fo wrongfully taken, with damages for the lofs fuftained by fuch unjuft invafion ; which is effected by action of replevin : an inftitution, which the mirror ^c afcribes to Glanvil, chief juftice to king Henry the fecond. This obtains only in one inftance of an unlawful taking, that of a wrong-

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^c c. 2.§. 6.
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ful
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Ch. 9.

ful diftrefs ; and this and the action of detinue (of which I fhall prefently fay more) are almoft the only actions, in which the actual fpecific poffeffion of the identical perfonal chattel is reftored to the proper owner. For things perfonal are looked upon by the law as of a nature fo tranfitory and perifhable, that it is for the moft part impoffible either to afcertain their identity, or to reftore them in the fame condition as when they came to the hands of the wrongful poffeffor. And, fince it is a maxim that “ lex neminem cogit ad vana, feu impoffibilia, ” it therefore contents itfelf in general with reftoring, not the thing itfelf, but a pecuniary equivalent to the party injured ; by giving him a fatisfaction in damages. But in the cafe of a diftrefs, the goods are from the firft taking in the cuftody of the law, and not merely in that of the diftreinor ; and therefore they may not only be identified, but alfo reftored to the firft poffeffor, without any material change in their condition. And, being thus in the cuftody of the law, the taking them back by force is looked upon as an atrocious injury, and denominated a refocus, for which the diftreinor has a remedy in damages, either by writ of refocus ^d, in cafe they were going to the pound, or by writ de parco fracto, or pound-breach ^e, in cafe they were actually impounded. He may alfo at his option bring an action on the cafe for this injury : and fhall therein, if the diftrefs were taken for rent, recover treble damages ^f. The term, refocus, is likewife applied to the forcible delivery fo a defendant, when arrefted, from the officer who is carrying him to prifon. In which circumftances the plaintiff has a fimilar remedy by action on the cafe, or of refocus ^g : or, if the fheriff makes a return of fuch refocus to the court out of which the procefs iffued, the refcuer will be punifhed by attachment ^h.

{FS}
^d F. N. B. 101.
^e Ibid. 100.
^f Stat. 2 W. & M. Seff. 1. c. 5.
^g 6 Mod. 211.
^h Cro. Jac. 419. Salk. 586.
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AN
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AN action of replevin, the regular way of contefting the validity of the tranfaction, is founded, I faid, upon a diftrefs taken wrongfully and without fufficient caufe : being a re-delivery of the pledge ⁱ, or thing taken in diftrefs, to the owner ; upon his giving fecurity to try the right of the diftrefs, and to reftore it if the right be adjudged againft him ^k. And formerly, when the party diftreined upon intended to difpute the right of the diftrefs, he had no other procefs by the old common law than by a writ of replevin, replegiari facias ^l ; which iffued out of chancery, commanding the fheriff to deliver the diftrefs to the owner, and afterwards to do juftice in refpect of the matter in difpute in his own county-court. But this being a tedious method of proceeding, the beafts or other goods were long detained from the owner, to his great lofs and damage ^m. For which reafon the ftatute of Marlbridge ⁿ directs, that (without fuing a writ out of the chancery) the fheriff, immediately upon complaint to him made, fhall proceed to replevy the goods. And, for the greater eafe of the parties, it is farther provided by ftatute 1 P. & M. c. 12. that the fheriff fhall make at leaft four deputies in each county, for the fole purpofe of making replevins. Upon application therefore, either to the fheriff, or one of his faid deputies, fecurity is to be given, in purfuance of the ftatute of Weftm. 2. 13 Edw. I. c. 2. 1. That the party replevying will purfue his action againft the diftreinor, for which purpofe he puts in plegios de profequendo, or pledges to profecute ; and, 2. That if the right be determined againft him, he will return the diftrefs again ; for which purpofe he is alfo bound to find plegios de retorno habendo. Befides thefe pledges, which are merely difcretionary in the fheriff, the ftatute 11 Geo. II. c. 19. requires that the officer, granting a replevin on a diftrefs for rent, fhall take a bond with two fureties in a fum of double the value of the goods diftreined ; which bond fhall be affigned to the avowant of perfon making cogni-

{FS}
ⁱ See pag. 13.
^k Co. Litt. 145.
^l F. N. B. 68.
^m 2 Inft. 139.
ⁿ 52 Hen. III. c. 21
{FE}
T 2
zance,
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zance, on requeft made to the fheriff ; and, if forfeited, may be fued in the name of the affignee. And certainly, as the end of all diftreffes is only to compel the party diftreined upon to fatisfy the debt or duty owing from him, this end is as well anfwered by fuch fufficient fureties as by retaining the very diftrefs, which might frequently occafion great inconvenience to the owner ; and that the law never wantonly inflicts. The fheriff, on receiving fuch fecurity, is immediately, by his officers, to caufe the chattels taken in diftrefs to be reftored into the poffeffion of the party diftreined upon ; unlefs the diftreinor claims a property in the goods fo taken. For if, by this method of diftrefs, the diftreinor happens to come again into poffeffion of his own property in goods which before he had loft, the law allows him to keep them, without any reference to the manner by which he thus has regained poffeffion ; being a kind of perfonal remitter ^o. If therefore the diftreinor claims any fuch property, the party replevying muft fue out a writ de proprietate probanda, in which the fheriff is to try, by an inqueft, in whom the property previous to the diftrefs fubfifted ^p. And if it be found to be in the diftreinor, the fheriff can proceed no farther ; but muft return the claim of property to the court of king's bench or common pleas, to be the farther profecuted, if thought advifable, and there finally determined ^q.

BUT if no claim of property be put in, or if (upon trial) the fheriff's inqueft determines it againft the diftreinor ; then the fheriff is to replevy the goods (making ufe of even force, if the diftreinor makes refiftance ^r) in cafe the goods be found within his county. But if the diftrefs be carried out of the county, or concealed, then the fheriff may return that the goods, or beafts, are eloigned, elongata, carried to a diftance, to places to him unknown : and thereupon the party replevying fhall have a writ of capias in withernam, or in vetito namio ; a term which fignifies a

{FS}
^o See pag. 19.
^p Finch. L. 316.
^q Co. Litt. 145. Finch. L. 450.
^r Inft. 193.
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fecond
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fecond or reciprocal diftrefs ^s, in lieu of the firft which was eloigned. It is therefore a command to the fheriff to take other goods, of the diftreinor, in lieu of the diftrefs formerly taken, and eloigned, or withheld from the owner ^t. So that here is now diftrefs againft diftrefs ; one being taken to anfwer the other, by way of reprifal ^u, and as a punifhment for the illegal behaviour of the original diftreinor. For which reafon goods taken in withernam cannot be replevied, till the original diftrefs is forth-coming ^w.

BUT, in common cafes, the goods are delivered back to the party replevying, who is then bound to bring his action of replevin ; which may be profecuted in the county court, be the diftrefs of what value it may ^x. But either party may remove it to the fuperior courts ; the plaintiff at pleafure, the defendant upon reafonable caufe ^y : and alfo if in the courfe of proceeding any right of freehold comes in queftion, the fheriff can proceed no farther ^z ; fo that it is ufual to carry it up in the firft inftance to the courts of Weftminfter-hall. Upon this action brought, the diftreinor, who is now the defendant, makes avowry ; that is, he avows taking the diftrefs in his own right, or the right of his wife ^a ; and fets forth the feafon of it, as for rent arrere, damage done, or other caufe : or elfe, if he juftifies in another's right, as his bailiff or fervent, he is faid to make cognizance ; that is, he acknowleges the taking, but infifts that fuch taking was legal, as he acted by the command of one who had a right

{FS}
^s Smith's commonw. b.3.c.10. 2Inft. 141.
^t F. N. B. 69. 73.
^u In the old northern languages the word withernam is ufed as equivalent to reprifals. (Stiernhook, de jure Sueon. l. 1. c. 10)
^w Raym. 475. The fubftance of this rule compofed the terms of that famous queftion, with which fir Thomas More (when a ftudent on his travels) is faid to have puzzled a pragmatical profeffor in the univerfity of Bruges in Flanders ; who gave a univerfal challenge to difpute with any perfon in any fcience : in omni feibili, et de quolibet ente. Upon which Mr More fent him this queftion, “ utrum averia carucae, capta in vetito namio, fint irreplegibilia ; ” whether beafts of the plough, taken in withernam, are incapable of being replevied. (Hoddefd. c. 5.)
^x 2 Inft. 139.
^y F. N. B. 69. 70.
^Z Finch. L. 317.
^a 2 Saund. 195.
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to
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to diftrein : and on the truth and legal merits of this avowry or cognizance the caufe is determined. If it be determined for the plaintiff ; viz. that the diftrefs was wrongfully taken ; he has already got his goods back into his own poffeffion, and fhall keep them, and moreover recover damages ^b. But if the defendant prevails, and obtains judgment that the diftrefs was legal, then he fhall have a writ de retorno habendo, whereby the goods or chattels (which were diftreined and then replevied) are returned again into his cuftody ; to be fold, or otherwife difpofed of, as if no replevin had been made. Or, in cafe of rent-arrere, he may have a writ to enquire into the value of the diftrefs by a jury, and fhall recover the amount of it in damages, if lefs than the arrear of rent ; or, if more, then fo much as fhall be equal to fuch arrear : and, if the diftrefs be infufficient, he may take a farther diftrefs or diftreffes ^c : but otherwife, if, pending a replevin for a former diftrefs, a man diftreins again for the fame rent or fervice, then the party is not driven to his action of replevin, but fhall have writ of recaption ^d, and recover damages for the defendant's contempt of the procefs of the law.

IN like manner, other remedies for other unlawful taking of a man's goods confift only in recovering a fatisfaction in damages. As if a man take the goods of another out of his actual or virtual poffeffion, without having a lawful title fo to do, it is an injury ; which, though it doth not amount to felony unlefs it be done animo furandi, is neverthelefs a tranfgreffion, for which an action of trefpafs vi et armis will lie ; wherein the plaintiff fhall not recover the thing itfelf, but only damages for the lofs of it. Or, if committed without force, the party may, at his choice have another remedy in damages by action of trover and converfion, of which I fhall prefently fay more.

2. DEPRIVATION of poffeffion may alfo be by an unjuft detainer of another's goods, though the original taking was lawful.

{FS}
^b F. N. B. 69.
^c Stat. 17 Car. II. c. 7.
^d F. N. B. 71.
{FE}
As
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As if I diftrein another's cattle damage-feafant, and he tenders me fufficient amends ; now, though the original taking was lawful, my fubfequent detainment of them after tender of amends is wrongful, and he fhall have an action of replevin againft me to recover them ^e : in which he fhall recover damages only for the detention and not for the caption, becaufe the original taking was lawful. Or, if I lend a man a horfe, and he afterwards refufes to reftore it, this injury confifts in the detaining, and not in the original taking, and the regular method for me to recover poffeffion is by action of detinue ^f. In this action, of detinue, it is neceffary to afcertain the thing detained, in fuch manner as that it may be fpecifically known and recovered. Therefore it cannot be brought for money, corn, or the like : for that cannot be known from other money or corn ; unlefs it be in a bag or a fack, for then it may be diftinguifhably marked. In order therefore to ground an action of detinue, which is only for the detaining, thefe points are neceffary ^g : 1. That the defendant came lawfully by the goods, as either by delivery to him, or finding them ; 2. That the plaintiff have a property ; 3. That the goods themfelves be of fome value ; and 4. That they be afcertained in point of identity. But there is one difadvantage difadvantage which attends this action ; viz. that the defendant is herein permitted to wage his law, that is, to exculpate himfelf by oath ^h, and thereby defeat the plaintiff of his remedy : which privilege is grounded on the confidence originally repofed in the bailee by the bailor, in the borrower by the lender, and the like ; from whence arofe a ftrong prefumptive evidence, that in the plaintiff's own opinion the defendant was worthy of credit. But for this reafon the action itfelf is of late much difufed, and has given place to the action of trover.

THIS action, of trover and converfion, was in it's original an action of trefpafs upon the cafe, for recovery of damages againft fuch perfon as had found another's goods, and refufed to deliver

{FS}
^e F. N. B. 69.
^f Ibid. 138.
^g Co. Litt. 286.
^h Ibid. 295.
{FE}
them
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them on demand, but converted them to his own ufe ; from which finding and converting it is called an action of trover and converfion. The freedom of this action from wager of law, and the lefs degree of certainty requifite in defcribing the goods ⁱ, gave it fo confiderable an advantage over the action of detinue, that by a fiction of law actions of trover were at length permitted to be brought againft any man, who had in his poffeffion by any means whatfoever the perfonal goods of another, and fold them or ufed them without the confent of the owner, or refufed to deliver them when demanded. The injury lies in the converfion : for any man may take the goods of another into poffeffion, if he finds them ; but no finder is allowed to acquire a property therein, unlefs the owner be for ever unknown ^k : and therefore he muft not convert them to his own ufe, which the law perfumes him to do, if he refufes to reftore them to the owner ; for which reafon fuch refufal alone is, prima facie, fufficient evidence of a converfion ^l. The fact of the finding, or trover, is therefore now totally immaterial : for the plaintiff needs only to fuggeft (as words of form) that he loft fuch 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 poffeffion, it is fufficient. But a converfion muft be fully proved : and then in this action the plaintiff fhall recover damages, equal to the value of the thing converted, but not the thing itfelf ; which nothing will recover but an action of detinue or replevin.

As to the damage that may be offered to things perfonal, while in the poffeffion of the owner, as hunting a man's deer, fhooting his dogs, poifoning his cattle, or in any wife taking from the value of any of his chattels, or making them in a worfe condition than before, thefe are injuries too obvious to need explication. I have only therefore to mention the remedies given by the law to redrefs them, which are in two fhapes : by action of trefpafs wi et armis, where the act is in itfelf immediately in-

{FS}
ⁱ Salk. 654.
^k See book. I. ch. 8. book II. ch. 1. & 26.
^l 10 Rep. 56.
{FE}
jurious
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jurious to another's property, and therefore neceffarily accompanied with fome degree of force ; and by fpecial action on the cafe, where the act is in itfelf indifferent, and the injury only confequential, and therefore arifing without any breach of the peace. In both of which fuits the plaintiff fhall recover damages, in proportion to the injury which he proves that his property has fuftained. And it is not material whether the damage be done by the defendant himfelf, or his fervants by his direction ; for the action will lie againft the mafter as well as the fervent ^m. And, if a man keeps a dog or other brute animal, ufed to do mifchief, as by worrying fheep, or the like, the owner muft anfwer for the confequence, if he knows of fuch evil habit ⁿ.

II. HITHERTO of injuries affecting the right of things perfonal, in poffeffion. We are next to confider thofe which regard things in action only ; or fuch rights as are founded on, and arife from contracts ; the nature and feveral divifions of which were explained in the preceding volume ^o. The violation, or non-performance, of thefe contracts might be extended into as great a variety of wrongs, as the rights which we then confidered : but I fhall now endeavour to reduce them into a narrow compafs, by here making only a twofold divifion of contracts ; viz. contracts exprefs, and contracts implied ; and confidering the injuries that arife from the violation of each, and their refpective remedies.

EXPRESS contracts include three diftinct fpecies, debts, convenants, and promifes.

1. THE legal acceptation of debt is, a fum of money due by certain and exprefs agreement. As, by a bond for a determinate fum ; a bill or note ; a fpecial bargain ; or a rent referved on a leafe ; where the quantity is fixed and unalterable, and does not depend upon any after-calculation to fettle it. The non-payment

{FS}
^m Noy's Max. c. 44.
ⁿ Con. Car 254. 487.
^o See book II. ch. 30.
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of thefe is an injury, for which the proper remedy is by action of debt ^p, to compel the performance of the contract and recover the fpecifical fum due ^q. This is the fhorteft and fureft remedy ; particularly where the debt arifes upon a fpecialty, that is, upon a deed or inftrument under feal. So alfo, 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 againft me ; for this is alfo a determinate contract : but if I agree for no fettled price, I am not liable to an action of debt, but a fpecial action on the cafe, according to the nature of my contract. And indeed actions of debt are now feldom brought but upon fpecial contracts under feal : wherein the fum due is clearly and precifely expreffed : for in cafe of fuch an action upon a fimple contract, the plaintiff labours under two difficulties. Firft, the defendant has here the fame advantage as in an action of detinue, that of waging his law, or purging himfelf of the debt the plaintiff muft recover the whole debt he claims, or nothing at all. For the debt is one fingle caufe of action, fixed and determined ; and which therefore, if the proof varies from the claim, connot be looked upon as the fame contract whereof the performance is fued for. If therefore I bring an action of debt for 30 l, I am not at liberty to prove a debt of 20 l. and recover a verdict thereon ^s ; any more than if I bring an action of detinue for a horfe, I can thereby recover an ox. For I fail in the proof of that contract, which my action or complaint has alleged to be fpecific, exprefs, and determinate. But in an action on the cafe, on what is called an indebitatus affumpfit, which is not brought to compel a fpecific performance of the contract, but to recover damages for it's non-performance, the implied affumpfit, and confequently the damages for the breach of it, are in their nature indeterminate ; and will therefore adapt and proportion themfelves to the truth of the cafe which fhall be proved, without being confined to the precife demand ftated in the declaration. For if any debt be proved,

{FS}
^p F. N. B. 119.
^q See appendix, N^o III. §. _N.
^r 4 Rep. 94.
^s Dyer. 219.
{FE}
how-
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however lefs than the fum demanded, the law will raife a promife pro tanto, and the damages will of courfe be proportioned to the actual debt. So that I may declare that the defendant, being indebted to me in 30 l, undertook or promifed to pay it, but failed ; and lay my damages arifing from fuch failure at what fum I pleafe : and the jury will, according to the nature of my proof, allow me either the whole in damages, or any inferior fum.

THE form of the writ of debt is fometimes in the debet and detinet, and fometimes in the detinet only : that is, the writ ftates, either that the defendant owes and unjuftly detains the debt or thing in queftion, or only that he unjuftly detains it. It is brought in the debet as well as detinet, when fued by one of the original contracting parties who perfonally gave the credit, againft the other who perfonally incurred the debt, as by the obligee againft the obligor, the landlord againft the tenant, & c. But, if it be brought by or againft an executor for a duty due to or from the teftator, this, not being his own debt, fhall be fued for in the detinet only ^t. So alfo if the action be for goods, for corn, or an horfe, the writ fhall be in the detinet only ; for nothing but a fum of money, for which I have perfonally contracted, is properly confidered as my debt. And indeed a writ of debt in the detinet only, is neither more nor lefs than a mere writ of detinue : it might therefore perhaps be more eafy (inftead of diftinguifhing between the debet and detinet, and the detinet only, in an action of debt) to fay at once that in the one cafe an action of debt may be had, in the other an action of detinue.

2. ACOVENANT alfo, contained in a deed, to do a direct act or to omit one, is another fpecies of exprefs contracts, the violation or breach of which is a civil injury. As if a man covenants to be at York by fuch a day, or not to exercife a trade in a particular place, and is not at York at the time appointed, or carries on his trade in the place forbidden, thefe are direct breaches of his covenant ; and may be perhaps greatly to the

{FS}
^t F. N. B. 119.
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difadvantage and lofs of the covenantee. The remedy for this is by writ of covenant ^u ; which directs the fheriff to command the defendant generally to keep his covenant with the plaintiff (without fpecifying the nature of the covenant) or fhew good caufe to the contrary : and if he continues refractory, or the covenant is already fo broken that it cannot now be fpecifically performed, then the fubfequent proceedings fet forth with precifion the covenant, the breach, and the lofs which has happened thereby ; whereupon the jury will give damages, in proportion to the injury fuftained by the plaintiff, and occafioned by fuch breach of the defendant's contract.

THERE is one fpecies of covenant, of a different nature from the reft ; and that is a covenant real, to convey or difpofe of lands, which feems to be partly of a perfonal and partly of a real nature ^w. For this the remedy is by a fpecial writ of covenant, for a fpecific performance of the contract, concerning certain lands particularly defcribed in the writ. It therefore directs the fheriff to command the defendant, here called the deforciant, to keep the covenant made between the plaintiff and him concerning the indentical lands in queftion : and upon this procefs it is that fines of land are ufually levied at common law ^x ; the plaintiff, or perfon to whom the fine is levied, bringing a writ of covenant, in which he fuggefts fome agreement to have been made between him and the deforciant, touching thofe particular lands, for the completion of which he brings this action. And, for the end of this fuppofed difference, the fine or finalis concordia is made, whereby the deforciant (now called the cognizor) acknowleges the tenements to be the right of the plaintiff, now called the cognizee. And moreover, as leafes for years were formerly confidered only as contracts ^y or covenants for the enjoyment of the rents and profits, and not as the conveyance of any real intereft in the land, the antient remedy for the leffee, if ejected, was by writ of covenant againft the leffor, to recover the term

{FS}
^u F. N. B. 145.
^w lial. On F. N. B. 146.
^x See book II. ch. 21.
^y Ibid. ch. 9.
{FE}
(if
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(if in being) and damages, in cafe the oufter was committed by the leffor himfelf ; or, if the term was expired, or the oufter was committed by a ftranger, then to recover damages only ^z.

3. A PROMISE is in the nature of a verbal covenant, and wants nothing but the folemnity of writing and fealing to make it abfolutely the fame. If therefore it be to do any explicit act, it is an exprefs contract, as much as any covenant ; and the breach of it is an equal injury. The remedy indeed is not exactly the fame : fince inftead of an action of covenant, there only lies an action upon the cafe, for what is called the affumpfit 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 eftimate and fettle. As if a builder promifes, undertakes, or affumes to Caius, that he will build and cover his houfe within a time limited, and fails to do it ; Caius has an action on the cafe againft the builder, for this breach of his exprefs promife, undertaking, or affumpfit ; and fhall recover a pecuniary fatisfaction for the injury fuftained by fuch delay. So alfo in the cafe before-mentioned, of a debt by fimple contract, if the debtor promifes to pay it and does not, this breach of promife entitles the creditor to his action on the cafe, inftead of being driven to an action of debt. Thus likewife a promiffory note, or note of hand not under feal, to pay money at a day certain, is an exprefs affumpfit ; and the payee at common law, or by cuftom and act of parliament the indorfee ^a, may recover the value of the note in damages, if it remains unpaid. Some agreements indeed, though never fo expreffly made, are deemed of fo important a nature, that they ought not to reft in verbal promife only, which cannot be proved but by the memory (which fometimes will induce the perjury) of witneffes. To prevent which, the ftatute of frauds and perjuries, 29 Car. II. c. 3. enacts, that in the five following cafes no verbal promife fhall be fufficient no ground an action upon, but at the leaft fome note or memorandum of it fhall be made in writing, and figned

{FS}
^z Ero. Abr. t. covenant. 33. F. N. B. 145.
^a See book II. ch. 30.
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by
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by the party to be charged therewith : 1. Where an executor or adminiftrator promifes to anfwer damages out of his own eftate. 2. Where a man undertakes to anfwer for the debt, default, or mifcarriage of another. 3. Where any agreement is made, upon confideration of marriage. 4. Where any contract or fale is made of lands, tenements, or hereditaments, or any intereft therein. 5. And, laftly, where there is any agreement that is not to be performed within a year from the making thereof. In all thefe cafes a mere verbal affumpfit is void.

FROM thefe exprefs contracts the tranfition is eafy to thofe that are only implied by law. Which are fuch as reafon and juftice dictate, and which therefore the law perfumes that every man has contracted to perform ; and, upon this prefumption, makes him anfwerable to fuch perfons, as fuffer by his non-performance.

OF this nature are, firft, fuch as are neceffarily implied by the fundamental conftitution of government, to which every man is a contracting party. And thus it is that every perfon is bound and hath virtually agreed to pay fuch particular fums of money, as are charged on him by the fentence, or affeffed by the interpretation, of the law. For it is part of the original contract, entered into by all mankind who partake the benefits of fociety, to fubmit in all points to the municipal conftitutions and local ordinances of that ftate, of which each individual is a member. Whatever therefore the laws order any one to pay, that becomes inftantly a debt, which he hath beforehand contracted to difcharge. And this implied agreement it is, that gives the plaintiff a right to inftitute a fecond action, founded merely on the general contract, in order to recover fuch damages, or fum of money, as are affeffed 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 againft another for a certain fum, and neglects to take out execution thereupon, he may afterwards bring an action of debt upon this
Judg-
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judgment ^b, and fhall not be put upon the proof of the original caufe of action ; but upon fhewing the judgment once obtained, ftill in full force, and yet unfatisfied, the law immediately implies, that by the original contract of fociety the defendant hath contracted a debt, and is bound to pay it. This method feems to have been invented, when real actions were more in ufe than at prefent, 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 thofe damages, which procefs was allowable in an action of debt (in confequence of the ftatute 25 Edw. III. c. 17.) but not in an action real. Wherefore, fince the difufe of thofe real actions, actions of debt upon judgment in perfonal fuits have been pretty much difcountenanced by the courts, as being generally vexatious and oppreffive, by harraffing the defendant with the cofts of two actions inftead of one.

ON the fame principle it is, (of an implied original contract to fubmit to the rules of the community, whereof we are members) that a forfeiture impofed by the by-laws and private ordinances of a corporation upon any that belong to the body, or an amercement fet in a court-leet or court-baron upon any of the fuitors to the court (for otherwife it will not be binding ^c) immediately create a debt in the eye of the law : and fuch forfeiture or amercement, if unpaid, work an injury to the party or parties intitled to receive it ; for which the remedy is by action of debt ^d.

THE fame reafon may with equal juftice be applied to all penal ftatues, that is, fuch acts of parliament whereby a forfeiture is inflicted for tranfgreffing the provifions therein enacted. The party offending is here bound by the fundamental contract of fociety to obey the directions of the legiflature, and pay the forfeiture incurred to fuch perfons as the law requires. The ufual application of this forfeiture is either to the party

{FS}
^b 1 Rool. Abr. 600, 601.
^c Law of nifi prius. 155.
^d 5 Rep. 64. Hob. 279.
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grieved,
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grieved, or elfe to any of the king's fubjects in general. Of the former fort is the forfeiture inflicted by the ftatute of Winchefter ^e (explained and enforced by feveral fubfequent ftatutes ^f) upon the hundred wherein a man is robbed, which is ment to oblige the hundredors to make hue and cry after the felon ; for, if they take him, they ftand excufed. But otherwife the party robbed is intitled to profecute them, by a fpecial action on the cafe, for damages equivalent to his lofs. And of the fame nature is the action given by ftatute 9 Geo. I. c. 22. commonly called the black act, againft the inhabitants of any hundred, in order to make fatisfaction in damages to all perfons who have fuffered by the offences enumerated and made felony by that act. But, more ufually, thefe forfeitures created by ftatute are given at large, to any common informer ; or, in other words, to any fuch perfon or perfons as will fue for the fame : and hence fach actions are called popular actions, becaufe they are given to the people in general ^g. Sometimes one part is given to the king, to the poor, or to fome public ufe, and the other part to the informer or profecutor ; and then the fuit is called a qui tam action, becuafe it is brought by a perfon “ qui tam pro domino rege, & c, quam pro feipfo in hac parte fequitur.” If the king therefore himfelf commences this fuit, he fhall have the whole forfeiture ^h. But if any one hath begun a qui tam, or popular, action, no other perfon can purfue it ; and the verdict paffed upon the defendant in the firft fuit is a bar to all others, and conclufive even to the king himfelf. This has frequently occafioned offenders to procure their own friends to begin a fuit, in order to foreftall and prevent other actions : which practice is in fome meafure prevented by a ftatute made in the reign of a very fharp-fighted prince in penal laws ; 4 Hen. VII. c. 20. which enacts, that no recovery, otherwife than by verdict, obtained by collufion in an action popular, fhall be a bar to any other action profecuted bona fide. A provifion, that feems borrowed from

{FS}
^e 13 Iidw. J. c. 1.
^f 27Eliz. c. 13. 29Car. II. c.7. 8Geo. II. c. 16. 22 Geo. II. c. 24.
^g See book II. ch. 29.
^h 2 Hawk. P. C. 268.
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the
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the rule of the Roman law, that if a perfon was acquitted of any accufation, merely by the prevarication of the accufer, a new profecution might be commenced againft him ⁱ.

A SECOND clafs, of implied contracts, are fuch as do not arife from the exprefs determination of any court, or the pofitive direction of any ftatute ; but from natural reafon, and the juft conftruction of law. Which clafs extends to all prefumptive undertakings or affumpfits ; which, though never perhaps actually made, yet conftantly arife from this general implication and intendment of the courts of judicature, that every man hath engaged to perform what his duty or juftice requires. Thus,

1. IF I employ a perfon to tranfact any hufinefs for me, or perform any work, the law implies that I undertook, or affumed to pay him fo much as his labour deferved. And if I neglect to make him amends, he has a remedy for this injury by bringing his action on the cafe upon this implied affumpfit ; wherein he is at liberty to fuggeft that I promifed to pay him fo much as he reafonably deferved, and then to aver that his trouble was really worth fuch a particular fum, which the defendant has omitted to pay. But this valuation of his trouble is fubmitted to the determination of a jury ; who will affefs fuch a fum in damages as they think he really merited. This is called an affumpfit on a quantum meruit.

2. THERE is alfo an implied affumpfit on a quantum valebat, which is very fimilar to the former ; being only where one takes up goods or wares of a tradefman, without expreffly agreeing for the price. There the law concludes, that both parties did intentionally agree, that the real value of the goods fhould be paid ; and an action on the cafe may be brought accordingly, if the vendee refufes to pay that value.

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ⁱ Ff. 47. 15. 3.
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3. A THIRD fpecies of implied affumpfits is when one has had and received money of another's, without any valuable confideration given on the receiver's part : for the law conftrues this to be money had and received for the ufe of the owner only ; and implies that the perfon fo receiving promifed and undertook to account for it to the true proprietor. And, if he unjuftly detains it, an action on the cafe lies againft him for the breach of fuch implied promife and undertaking ; and he will be made to repair the owner in damages, equivalent to what he has detained in fuch violation of his promife. This is a very extenfive and beneficial remedy, applicable to almoft every cafe where the defendant has received money which ex aequo et bono he ought to refund. It lies for money paid by miftake, or on a confideration which happens to fail, or through impofition, extortion, or oppreffion, or where undue advantage is taken of the plaintiff's fituation ^k.

4. WHERE a perfon has laid out and expended his own money for the ufe of another, at his requeft, the law implies a promife of repayment, and an action will lie on this affumpfit ^l.

5. LIKE WISE, fifthly, upon a ftated account between two merchants, or other perfons, the law implies that he againft whom the ballance appears has engaged to pay it to the other ; though there be not any actual promife. And from this implication it is frequent for actions on the cafe to be brought, declaring that the plaintiff and defendant had fettled their accounts together, infimul computaffent, (which gives name to this fpecies of affumpfit) and that the defendant engaged to pay the plaintiff the ballance, but has fince 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 ^m ; commanding the defendant to render a juft account to the plaintiff, or fhew the court good coufe to the

{FS}
^k 4 Burr. 1012.
^l Carth. 446. 2 Keb. 99.
^m F. N. B. 116.
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contrary.
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Contrary. In this action, if the plaintiff fucceeds, there are two judgments : the firft is, that the defendant do account (quod computet) before auditors appointed by the court ; and, when fuch account is finifhed, then the fecond judgment is, that he do pay the plaintiff fo much as he is found in arrear. This action, by the old common law ⁿ, lay only againft the parties themfelves, and not their executors ; becaufe matters of account refted folely in their own knowlege. But this defect, after many fruitlefs attempts in parliament, was at laft remedied by ftatute 4 Ann. c. 16. which gives an action of account againft the executors and adminiftrators. But however it is found by experience, that the moft ready and effectual way to fettle thefe matters of account is by bill in a court of equity, where a difcovery 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 fettle his accounts, are now very feldom ufed ; though, when an account is once ftated, nothing is more common than an action upon the implied affumpfit to pay the ballance.

6. THE laft clafs of contracts implied by reafon and conftruction of law arifes upon this fuppofition, that every one who undertakes any office, employment, truft, or duty, contracts with thofe who employ or entruft him, to perform it with integrity, diligence, and fkill. And, if by his want of either of thofe qualities any injury accrues to individuals, they have therefore their remedy in damages by a fpecial action on the cafe. A few inftances will fully illuftrate this matter. If an officer of the public is guilty of neglect of duty, or a palpable breach of it, of non-feafance or of mif-feafance ; as, if the fheriff does not execute a writ fent to him, or if he willfully makes a falfe return thereof ; in both thefe cafes the party aggrieved fhall have an action on the cafe, for damages to be affeffed by a jury ^o. If a fheriff or gaoler fuffers a prifoner, who is taken upon mefne procefs (that is, during the pendency of a fuit) to efcape, he is

{FS}
ⁿ Co. Litt. 90.
^o Moor. 431. 11 Rep. 99.
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liable to an action on the cafe ^p. But if after judgment, a gaoler or a fheriff permits a debtor to efcape, who is charged in execution for a certain fum ; the debt immediately becomes his own, and he is compellable by action of debt, being for a fum liquidated and afcertained, to fatisfy the creditor his whole demand : which doctrine is grounded ^q on the equity of the ftatutes of Weftm. 2. 13 Edw. I. c. 11. and 1 Ric. II. c. 12. An advocate or attorney that betray the caufe of their client, or, being retained, neglect to appear at the trial, by which the caufe mifcarries, are liable to an action on the cafe, for a reparation to their injured client ^r. There is alfo in law always an implied contract with a common inn-keeper, to fecure his gueft's goods in his inn ; with a common carrier or bargemafter, to be anfwerable for the goods he carries ; with a common farrier, that he fhoes a horfe well, without laming him ; with a common taylor, or other workman, that he performs his bufinefs in a workmanlike manner : in which if they fail, an action on the cafe lies to recover damages for fuch breach of their general undertaking ^g. But if I employ a perfon to tranfact any of thefe concerns, whofe common profeffion and hufinefs it is not, the law implies no fuch general undertaking ; but in order to charge him with damages, a fpecial agreement is required. Alfo if an inn-keeper, or other victualler, hangs out a fign and opens his houfe for travellers, it is an implied engagement to entertain all perfons who travel that way ; and upon this univerfal affumpfit an action on the cafe will lie againft him for damages, if he without good reafon refufes to admit a traveler ^t. If any one cheats me with falfe cards or dice, or by falfe weights and meafures, or by felling me one commodity for another, an action on the cafe alfo lies againft him for damages, upon the contract which the law always implies, that every tranfaction is fair and honeft ^u. In contracts likewife for fales, it is conftantly underftood that the feller undertakes that the commodity he fells is his own ; and if it proves otherwife,

{FS}
^p Cro. Eliz. 625. Comb. 69.
^q Bro. Abr. t. parliament. 19. 2 Inft. 382.
^r Finch. L. 188.
^s 11 Rep. 54. 1 Saund. 324.
^t 1 Ventr. 333.
^u 10 Rep. 56.
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an
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an action on the cafe lies againft him to exact damages for this deceit. In contracts for provifions it is always implied that they are wholefome ; and, if they be not, the fame remedy may be had. Alfo if he, that felleth any thing, doth upon the fale warrant it to be good, the law annexes a tacit contract to this warranty, that if it be not fo, he fhall make compenfation to the buyer : elfe it is an injury to good faith, for which an action on the cafe will lie to recover damages ^w. The warranty muft be upon the fale ; for if it be made after, and not at the time of the fale, it is a void warranty ^x : for it is then made without any confideration ; neither does the buyer then take the goods upon the credit of the vendor. Alfo 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 horfe is found at the buying of him ; not that he will be found two years hence. But if the vendor knew the goods to be unfound, and hath ufed any art to difguife them ^y, or if they are in any fhape different from what he reprefents them to be to the buyer, this artifice fhall be equivalent to an exprefs warranty, and the vendor is anfwerable for their goodnefs. A general warranty will not extend to guard againft defects that are plainly and obvioufly the object of one's fenfes, as if a horfe be warranted perfect, and wants either a tail or an ear, unlefs the buyer in this cafe be blind. But if cloth is warranted to be of fuch a length, when it is not, there an action on the cafe lies for damages ; for that cannot be difcerned by fight, but only by a collateral proof, the meafuring it ^z. Alfo if a horfe is warranted found, and he wants the fight of an eye, though this feems to be the object of one's fenfes, yet as the difcernment of fuch defects is frequently matter of fkill, it hath been held that an action on the cafe lieth, to recover damages for this impofition ^a.

BESIDES the fpecial action on the cafe, there is alfo a peculiar remedy, entitled an action of deceit ^b, to give damages in fome

{FS}
^w F. N. B. 94.
^x Finch. L. 189.
^y 2 Roll. Rep. 5.
^z Finch. L. 189.
^a Salk. 611.
^b F. N. B. 95.
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particular


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particular cafes of fraud; and principally where one man does any thing in the name fo another, by which he is deceived or injured ^c; as if one brings an action in another's name, and then fuffers a nonfuit, whereby the plaintiff becomes liable to cofts: or where one fuffers a fraudulent recovery of land or chattels to the prejudice of him that hath right. It alfo lies in the cafes of warranty before-mentioned ^d, and the other injuries committed contrary to good faith and honefty. But the action on the cafe, in nature of deceit, is more ufually brought upon thefe occafions.

THUS much for the non-performance of contracts exprefs or implied; which includes every poffible injury to what is by far the moft confiderable fpecies of perfonal property; viz. that which confifts in action merely, and not in poffeffion. Which finifhes our enquiries into fuch wrongs as may be offered to perfonal property, with their feveral remedies by fuit or action.

.{FS}
^c Law of nifi prius. 29.
^d F. N. B. 98.
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