without any breach of the peace. In both of which fuits the plaintiff shall 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 himself, or his servants by his direction; for the action will lie against the mafter as well as the fervant. 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 confequences, if he knows of such evil habit (2). II. HITHERTO of injuries affecting the right of things perfonal, in poffeffion. We are next to confider those which regard things in action only; or fuch rights as are founded on, and arise from contracts: the nature and several divifions of which were explained in the preceding volume 9. The violation, or non-performance, of these contracts might be extended into as great a variety of wrongs, as the rights which we then confidered: but I fhall now confider them in a more comprehensive view, by here making only a twofold divifion of contracts; viz. contracts exprefs, and contracts implied; and pointing out the injuries that arife from the violation of each, with their respective remedies. EXPRESS contracts include three diftinct fpecies; debts covenants, and promises. • Noy's Max. c. 44. Cro. Car, 254. 487. 4 See book II. ch. 30. (2) But the owner is not answerable for the first mischief done by a dog, a bull, or other tame animal, Bull, N. P. 77. Yet if he fhould carry his dog into a field, where he himself is a trefpaffer, and the dog fhould kill sheep, this, though the first offence, might I conceive be ftated and proved as an aggravation of the trefpafs. * But where a fierce and vicious dog is kept chained for the defence of the premifes, and any one incautiously, or not knowing of it, fhould go fo near it as to be injured by it, no action can be maintained by the perfon injured, though he was feeking the owner, with whom he had bufinefs. Bates v. Crosbie, M. T. 1798, in the King's Bench. J. THE 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 special bargain; or a rent referved on a leafe; where the quantity is fixed and fpecific, and does not depend upon any fubfequent valuation to fettle it. The non-payment of thefe is an injury, for which the proper semedy is by action of debt, to compel the performance of the contract and recover the fpecifical fum due'. This is the [155] shortest and fureft remedy; particularly where the debt arifes upon a specialty, 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 against 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 precisely expreffed : for, in cafe of fuch an action upon a fimple contract, the plaintiff labours under two difficulties. First, the defendant has here the fame advantage as in an action of detinue, that of waging his law, or purging himself of the debt by oath, if he thinks 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 fingle cause of action, fixed and determined; and which therefore, if the proof varies from the claim, cannot be looked upon as the fame contract whereof the performance is fued for. If therefore I bring an action of debt for 30%. I am not at liberty to prove a debt of 20%, and recover a verdict thereon'; any more than if I bring an action of detinue for a horfe, I can thereby recover an ox (3). For I fail in the proof of that contract, which my action or F. N. B. 119. • See appendix, No III. § z. £ 4 Rep. 94. • Bro. Le y gager. 93. Dyer. 219. 2 Roll. Abr. 706. 1 Show, 215. (3) But it is now determined that, in an action of debt upon a fimple contract, the plaintiff may recover a less fum than is stated in his writ or declaration. & Hen. Bl. 249. 2 Bl. Rep. 1221. complaint Book III. complaint has alleged to be specific, exprefs, and determinate. But in an action on the cafe, on what is called an indebitatus affumpfit, which is not brought to compel a specific performance of the contract, but to recover damages for its 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 promife 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 arifing 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 difcharged any part of it, the plaintiff shall 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 queftion, 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, shall be fued for in the detinet only". 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 (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 1 Roll. Rep. 257. Salk. 664. w F. N. B. 119. goods goods and chattels, is neither more nor lefs than a mere writ of detinue; and is followed by the very fame judgment *. 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 breach of which is a civil injury. As if a man covenants to be at York by fuch 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 3 greatly to the disadvantage and lofs of the covenantee. 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 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 precision 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. For this the remedy is by a special writ of covenant, for a specific 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 question and upon this process it is that fines of lands are ufually levied at common law; 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 z Hal. on F. N. B. 146. * Raft. Entr. 174. * F. N. B. 145• See book II. ch. 21. end 157 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 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 case the oufter was committed by the leffor himself: or, if the term was expired, or the oufter was committed by a ftranger, 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 rever fion or rent. To remedy which, and more effectually to fecure to the king's grantees the fpoils of the monafteries then newly diffolved, the statute 32 Hen. VIII. c. 34. gives the affignee of a reverfion (after notice of such 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, 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 See book II. ch. 9. Co. Litt. 215. Moor. 876. Cros • Bro. Abr. 1. covenant. 33. F. N. B. Jac. 145. 476. the |