ance of the contract, but to recover damages for it's nonperformance, the implied affumpfit, and confequently the damages for the breach of it, are of their nature indetermi nate; and will therefore adapt and proportion themselves to the truth of the cafe which fhall be proved, without being confined to the precife demand stated in the declaration. For [156] if any debt be proved, however lefs than the fum demanded,

the law will raife 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 ariling from fuch failure at what fum I please: and the jury will, according to the nature of my proof, allow me either the whole in damages, or any inferior fum. And, even in actions of debt, where the contract is proved or admitted, if the defendant can fhew that he has discharged any part of it, the plaintiff fhall recover the refidue ".

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 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 fued by one of the original contracting parties who perfonally gave the credit, against the other who perfonally 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 teftator, this not being his own debt, fhall be fued for in the detinet only w. So alfo if the action be forgoods, for corn, or an horse, the writ shall be in the detinet only; for nothing but a fum of money, for which I (or my ancestors in my name) have perfonally contracted, is properly confidered 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 fame judgment *.

u 1 Roll. Rep. 257. Salk. 664.

w F. N. B. 119.

x Raft. Entr. 174.

2. A COVENANT

The

2. A COVENANT alfo, contained in a deed, to do a direct act or to omit one, is another fpecies of exprefs contracts, the violation or a 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 carries on his trade in the place forbidden, these are direct breaches of his covenant; and may be perhaps [ 157 1 greatly to the difadvantage and lofs of the covenantee. remedy for this is by a writ of covenanty: which directs the fheriff to command the defendant generally to keep his covenant with the plaintiff (without specifying 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 subsequent 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 personal and partly of a real nature. For this the remedy is by a special 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 identical lands in queftion and upon this procefs it is that fines of lands are ufually levied at common law; the plaintiff, or person 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 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

7 F. N. B. 145.

Hal. on F. N, B. 146.

Sea book II. ch. 21.

made,

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 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 [158] leffee, if ejected, was by a writ of covenant against the leffor, to recover the term (if in being) and damages, in cafe the ouster was committed by the leffor himself: or, if the term was expired, or the oufter was committed by a stranger, claiming by an elder title, then to recover damages only <.

No perfon could at common law take advantage of any covenant or condition, except fuch as were parties or privies thereto; and, of course, no grantee or affignee of any reverfion or rent. To remedy which, and more effectually to fecure to the king's grantees the fpoils of the monafteries then newly diffolved, the ftatute 32 Hen. VIII. c. 34. gives the affignee of a reverfion (after notice of fuch affignment) the fame remedies against the particular tenant, by entry or action, for waste or other forfeitures, non-payment of rent, and nonperformance of conditions, covenants, and agreements, as the affignor himself might have had; and makes him equally liable, on the other hand, for acts agreed to be performed by the affignor, except in the case of warranty.

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, instead 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

b See book II. ch. 9.

476.

Bro. Abr. t. covenant. 33. F. N. B.

d Co. Litt. 215. Moor. 876. Cro. Jac. 145

the

the plaintiff, the damages whereof a jury are to cftimate 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 against the builder, for this breach of his exprefs promise, undertaking, or affumpfit; and fhall recover a pecuniary fatisfaction for the injury sustained by fuch delay. So alfo in the cafe before-mentioned, of a debt by fimple contract, if the debtor promises to pay it and does not, this breach of promise 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 custom and act of parliament the indorfee f, may recover the value of the note in damages, if it remains unpaid. Some agreements indeed, though never fo exprefsly made, are deemed of fo important a nature, that they ought not to rest 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 promise fhall be fufficient to ground an action upon, but at the leaft fome note or memorandum of it fhall be made in writing, and figned by the party to be charged therewith: 1. Where an executor or administrator promises to answer damages out of his own cftate. 2. Where a man undertakes to answer 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 these cafes a mere verbal affumpfit is void (3).

* 4 Rep. 92.

f See book II. ch. 30.

FROM

(3) Thefe provifions in the ftatute have produced many decifions both in the courts of law and equity.

It is determined, that if two perfons go to a fhop, and one Orders goods, and the other fays, "if he does not pay I will, or I VOL. III. " will

N

158 FROM thefe exprefs contracts the tranfition is eafy to thofe that are only implied by law. Which are fuch as reafon and juitiće

"will fee you paid," he is not bound unless his engagement is reduced into writing; in all fuch cafes the queftion is, who is the buyer, or to whom the credit is given, and who is the furety, and that question, from all the circumftances, must be afcertained by the jury for if the perfon for whofe ufe the goods are furnished be liable at all, any promife by a third perfon to discharge the debt must be in writing, otherwife it is void. 2 T. R. 80. H. Bl. Rep. 120. Mutual promifes to marry need not be in writing, but the ftatute relates only to agreements made in confideration of the marriage. leafe not exceeding three years, in which the rent referved amounts to two thirds of the improved value, is good without writing; but all other parol leafes or agreements for any intereft in lands, have the effect of eftates at will only. Bull. N. P. 279. All declarations of trufts, except fuch as refult by implication of law, muit be made in writing. 29 Car. II. c. 3. 1. 7 & 8.

If a promife depends upon a contingency, which may or may not fall within a year, it is not within the ftatute; as a promife to pay a fum of money upon a death or marriage, or upon the return of a fhip, or to leave a legacy by will, is good by parol; for fuch a promife may by poffibility be performed within the year. 3 Barr. 1278. &c.

1 Salk. 280..

3

Salk. 9.

With regard to the contracts for goods of the value of 10l., Sce 2 vol. 448. n. 6 & 7.

But a court of equity will decree a specific performance of a verbal contract, when it is confefied by a defendant in his answer, or when there has been a part performance of it; as by payment of part of the confideration money, or by entering and expending money upon the estate, for fuch 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.

If one party only figns an agreement, he is bound by it; and if an agreement is by parol, but it is agreed it fhall 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, 5, 6. See 3 Wood.

Lea.